



























































CALEB CUSHING COLLECTION. 


GENERAL INSTRUCTIONS 


TO THE 


CONSULS AND COMMERCIAL AGENTS 


OP THE 


UNITED STATES. 


PREPARED UNDER THE DIRECTION OF THE DEPARTMENT OF STATE. 


WASHINGTON: 

PRINTED BY A. O. P. NICHOLSON. 
1855. 





(LafiU, <Lu» J* Uj ' 

'Tji.C . ' feir 





TABLE OF CONTENTS 


Page. 


Circular letter to Consuls and Commercial Agents. 7 

CHAPTER I. 

General remarks on the Nature and Duties of the Consular office. 9 

CHAPTER II. 


Of the Duty of a Consul before he enters on the exercise of his official 

functions.. 15 

CHAPTER III. 

Of the Formalities to be observed by a Consul after entering upon the 

duties of his office. 16 

CHAPTER IV. 

Instructions respecting the Correspondence of a Consul with the Depart¬ 


ment of State. 19 

CHAPTER V. 

Of the Records and Papers of the Consular office. 25 

CHAPTER VI. 

Of the Duties of Consuls in relation to Intestates' Estates. 28 

CHAPTER VII. 

Of the Duties of Consuls in relation to Wrecks. 38 

CHAPTER yin. 

Of the Duties of Consuls in relation to the Masters of American vessels. 41 

CHAPTER IX. 

Of the Duties of Consuls in relation to Seamen of the United States.... 46 

CHAPTER X. 

Of the Accounts of Consuls. 75 











4 


CHAPTER XI. 

Page. 

Salaries of Consuls who are not permitted to transact business. 84 

CHAPTER XII. 

Salaries of Consuls who are at liberty to transact business. 89 

CHAPTER XIII 

Salaries of Consuls General. 93 

CHAPTER XIV. 

Duties of Consuls in respect to United States citizens in general. 94 

CHAPTER XV. 

Of the Duties of Consuls in granting Certificates and Passports. 95 

4 || 

CHAPTER XVI. 

Duties of Consuls in respect to the Passenger Act. 99 

CHAPTER XVII. 

Duties of United States Consuls in China. 103 

CHAPTER XVIII. 

Duties of United States Consuls in Africa. 119 

CHAPTER XIX. 

Duties of United States Consuls in Turkey. 113 

CHAPTER XX. 

Verification of Invoices. 119 

CHAPTER XXI. 

Duties of Consuls with respect to the Appointment of Consular Agents.. 130 

CHAPTER XXII. 

Duties of Commercial Agents. 133 

CHAPTER XXIII. 

Consuls General. 136 














5 


CHAPTER XXIV. 

rage. 

Fees of United States Consuls. 137 

CHAPTER XXV. 

Attendance of Consuls, etc., as witnesses in court...... 142 

CHAPTER XXVI. 

Forms of Official Documents. 144 

CHAPTER XXVII. 

Official Intercourse of United States Consuls with Officers of the Navy.. 157 

APPENDIX. 

A. —Act to remodel the Diplomatic and Consular Systems of the United 

States. 3 

Section third of the act of March 3, 1855... 24 

B. —Opinion of the Attorney General on the Act to remodel the Diplo¬ 

matic and Consular Systems of the United States— 

Part I.—Diplomatic Agents. 25 

Part II. —Consuls. 78 

C. —Opinion of the Attorney General on Consular Marriages. 124 

D. —Exterritorial privileges of Consuls in certain countries. 143 

E. —Acts of Congress, and extracts therefrom, relating to United States 

Consuls. 153 

F. —Index to the principal Acts of Congress relating to United States 

Consuls. 1H6 

G. —List of Ministers, Consuls, and other Diplomatic and Commercial 

Agents of the United States in foreign countries. 188 

H. —Opinion of the Attorney General concerning the Judicial Authority 

of the Commissioner or Minister and of Consuls of the United 
States in China and Turkey. 205 










































( No. 13. ) 


CIRCULAR 

TO THE CONSULS AND COMMERCIAL AGENTS OF THE UNITED STATES. 



yccc /?/ c , ///// n/ftti, /of /// 


§tjj»rtiittnt of State, 

^/une 22, t&55. 

(fo rt no// Ycceme, & 
in^oYmc/t/on ana <ptz/(fanc6, cez/a/ai ycnm/c/ 
o/pf/act/oncf anc/ ^o/md, n///c/Z a// zcnc/eYcc/ 
necezwaz/f ^ tf!c act ojf /conc/YCM o^ /f 
Grazed, fZ/Se), zemoc/e/tna t/Zc ZfZZZt^/omat// 
an/f ^/ZZo?i 4 ///of fZ/yfemri oj/ t/Zc ^//nitcc/ 
( 2 Z^at/kf. /ff/Zc?^ azo /ntcnc/cr/ to ja^ieMec/e 

tfZc4e tf'f/c// /cc/jc /con 'tZeYcto^OYc fd-iacc/^zo/n 
ff/Jcfi//ment. Q/acjc //of uzct/o/oi ace 

to /Ze tZerf/t /// tJc /oon^a/itc, anc/ cazejfa/ty, 
o A, zneo/ //? a// YOd^/ectd. 

/^oaf attent/o?/ z<f cd^zcc/a//^ z/t/zectez/ 
to ttie act o/ toonniCM zez/i oc/e/iny t/e 





8 



fr/oma/te and *~&ondii/aP (^y/dtemd 



o. 


y/t 


United Grated, and aido to tde djfyynyon oj. 
toznaa 'Hrenova/ tdeveon, and to /do 


djfyy//uon o?i ddondyy/oyp Gd^a/Yuajped. 
(pf am, PP, YOd^/y yyt^yy/ty, 


\ouP oYecUe??/ jewcml. 


W. L. MARCY. 


INSTRUCTIONS. 


CHAPTER I. 

GENERAL REMARKS ON THE NATURE AND DUTIES OF THE CON¬ 
SULAR OFFICE. 

1. The word “ consuls,” 1 as used in the Constitution 
of the United States, may be conveniently regarded as 
the generic designation of a class of public officers, 
existing by public law, and recognised by numerous 
treaties, who are appointed by their government to 
reside in foreign countries, and especially in seaports 
and other convenient points, to discharge administra¬ 
tive and sometimes judicial functions in regard to 
their fellow-citizens, merchants, marines, travellers, and 
others, who dwell or happen to be in such places ; to 
aid, by the authentication of documents abroad, in the 
collection of the public revenue, and generally to per¬ 
form such other duties as may be assigned to them by 
the laws and orders of their government. 

2. Accordingly, by successive acts of Congress, and 
by various other incidental provisions of law, duties 
are imposed, and rights conferred, on this class of 
public officers, under the names of consuls general, 
consuls, vice consuls, commercial agents, vice com¬ 
mercial agents, and consular agents. 

3. The important act of 1792 contains a declaratory 
provision, which is to be understood as implied in all 
other acts of Congress, as follows: 


1 See Opinion of the Attorney General, hereunto annexed, June 2, 1855. 



10 


“ The specification of certain powers and duties, * * *, 
to be exercised or performed by the consuls and vice con¬ 
suls of the United States, shall not be construed to the 
exclusion of others resulting from the nature of their 
appointments, or any treaty or convention under which 
they may act.” 1 

4. So that, apart from acts of Congress, the func¬ 
tions of consuls are indicated, and their duties and 
lights defined, by general treaties, conventions, and 
consular conventions, entered into between, the United 
States and other sovereign powers. 

5. In addition to which, they possess, by the law of 
nations, many functions, rights, and privileges, other 
than such a3 are defined by convention, by legislative 
act, or by regulation. 

6. A consul is not such a public minister as to be 
entitled to the privileges appertaining to that char¬ 
acter, nor is he under the special protection of the 
law of nations. In civil and criminal cases, where not 
otherwise provided by treaty stipulation, he is subject 
to the laws of the country in which he resides. 2 

7 The laws of the United States on the subject of 
consuls and vice consuls specially authorize them to 
receive the protests of masters and others relating to 
American commerce, and they declare that consular 
certificates under seal shall receive faith and credit- 
in the courts of the United States. It is likewise made 
their duty, where the laws of the country permit, to 
collect and remit the assets of the personal estates of 
American citizens dying within their consulates, and 

1 i Statutes at Large, 257. 

2 i Kent, 44 ; Opinions of Attorneys General; Ex. Doc. No, 55, 2d sess. 31st 
CoDg., pp. 265 et seq.; De Clercq, Formulaire, tome ii, pp. 32, 33, 


i 


11 


leaving no legal representative, and to take charge of, 
and secure the effects of stranded American vessels, 
in the absence of the master, owner, or consignee; 
and they are bound to provide for destitute seamen 
within their consulates, and to send them, at the pub¬ 
lic expense, to the United States. It is their duty, like¬ 
wise, to reclaim deserters, and discountenance insub¬ 
ordination, and to lend their aid to the local authori¬ 
ties for that purpose, and to discharge seamen cruelly 
treated. It is also their duty to receive from the mas¬ 
ters of American vessels, on their arrival at a foreign 
port, and after the vessel shall have come to an entry, 
the registers, sea letters, and passports of such vessels. 
These duties, and some others, which arc prescribed 
by legal enactment, are in accordance with the usages 
of nations, 1 and with special treaty stipulations with 
certain countries. 

8. Many of the consular duties are such as arise 
from peculiar circumstances: such as the character and 
habits of the nation in which the consul resides, the 
nature of the intercourse with the United States, and its 
laws and customs. In the most restricted sense, they 
are important and multifarious. The commercial in¬ 
terests of his country are, in a measure, committed 
to his care. He is to observe whether the conditions 
in commercial treaties are observed, and report all 
changes in commercial regulations and municipal 
ordinances. 

9. Every law, edict, or regulation, coming to his 
knowledge, in any way affecting the commerce of the 
United States, or of any other country than that in 
which the consular district lies, must immediately be 


H Kent, 42; Wheaton’s El., 166. 


12 


transmitted to this Department; and, if it be a local 
regulation, operating only on a particular port, the 
consul must also give immediate notice thereof to the 
minister, if there be any in the country to which the 
district belongs. 

10. The consuls are expected, in their correspond¬ 
ence, to note all events which bear upon the commerce 
of the country with the United States and of our navi¬ 
gation, the establishment of new branches of industry 
in the extent of their consulate, and the increase and 
decline of those before established; they will make 
such suggestions as, in their opinion, may lead to the 
increase of our commerce or navigation, and point out 
those which have a contrary effect* with the means that 
appear proper for avoiding them. Samples of manu¬ 
factures and specimens of produce which appear to be 
valuable articles either of export or import, if not 
generally known, should be sent, if not too bulky, with 
the consular letters, and if too bulky, may be addressed 
to the collector of some of our principal ports; also, 
seeds of plants and grain which might be cultivated to 
advantage in the United States. In general, the 
duties of the consular office require an attention to 
whatever can promote the commerce and navigation 
of our country, as well as the interests of the citizens 
of the United States who may require the exercise of 
the consular functions. 

11. Consuls are particularly cautioned not to enter 
into any contentions which can be avoided, either with 
their countrymen or the authorities of the country in 
which they reside; referring questions of that nature 
to the minister or to this Department, and using every 


13 


endeavor to settle, in an amicable manner, all disputes 
in,which their countrymen may be concerned; counte¬ 
nancing and protecting them with the authorities of 
the country in all cases in which they may be injured 
or oppressed, but firmly refusing them support when 
they have been wilfully guilty of any infraction of 
the laws, particularly in any attempt to defraud the 
revenue, and giving aid to the proper officers in pre¬ 
venting any such practices, which, though they may 
prove a pecuniary benefit to the individuals concerned, 
leave a stain on the national character. 

12. It is at all times the duty of consuls exercising 
the functions and enjoying the privileges attached to 
their offices, scrupulously to abstain from all participa¬ 
tion whatever, direct or indirect, in the political con¬ 
cerns of the countries to which they are appointed, and 
by whose governments they are severally acknow¬ 
ledged and recognised in their public characters; and 
they should be equally on their guard against the en¬ 
listment of their feelings upon the side of any of the 
political or sectional parties which may divide them. 
In their letters even to this Department, upon such 
subjects, they will confine themselves to the communi¬ 
cation of important or interesting public events, as they 
occur, in as concise and succinct a form as may be 
convenient, avoiding all unnecessary reflections or criti¬ 
cism upon the characters or conduct of individuals 
or governments; and they will not give publicity, 
through the press or otherwise, to opinions or specu¬ 
lations injurious to the public institutions of those 
countries, or the persons concerned in the adminis¬ 
tration of them; but it is, at the same time, no less 


14 


their duty to report, freely and seasonably, to their 
own government, all important facts which may come 
to their knowledge, through authentic channels, touch¬ 
ing the political condition of these countries, espe¬ 
cially if their communications can be made subser¬ 
vient to, or may affect, the interest and well being of 
their own. 1 

13. Consuls will not, unless the consent of Congress 
shall have been previously obtained, accept, under 
any circumstances, of any present, emolument, office, 
or title of any kind whatever, from any king, prince, 
or foreign state. 2 

14. It is the duty of consuls to be conversant with 
all treaties, conventions, and consular conventions, also, 
with the laws and commercial and other regulations 
relating to their consular functions. 

15. As consuls, excepting in Mahommedan States, 
are not invested with diplomatic powers, they are not 
entitled, therefore, to communicate directly, except 
under special circumstances, with the government of 
the country in which they reside. 

16. Whenever application is to be made to such gov¬ 
ernment, it must be done through the minister of the 
United States, if there be one; if not, and the case 
should require it, the consul may make the application 
to the proper department, but in respectful terms, 
stating the exigency of the case, and that an applica¬ 
tion to the subordinate officers could not be made, or 
had proved ineffectual. 


1 De Clercq, tome ii, pp. 34, 35. 


2 i Stat. at Large, p. 15. 


15 


CHAPTER II. 

OF THE DUTY OF A CONSUL BEFORE HE ENTERS ON THE EXERCISE 
OF HIS OFFICIAL DUTIES. 

18. As soon as a consul or commercial agent shall 
be officially notified of his appointment, he shall exe¬ 
cute a bond, (see Form No. 1,) with two sureties, who 
must be citizens and residents of the United States, in 
a sum of not less than one thousand nor more than ten 
thousand dollars; which bond, conditioned for the 
true and faithful discharge of the duties of his office 
according to law, and also for truly accounting for 
all fees, moneys, goods, and effects which may come 
officially into his possession, shall be satisfactory to the 
United States district attorney for the district in which 
his sureties reside, and be transmitted to the Secretary 
of State for his approval. 

19. If the consul is not in the United States at the 
time of his appointment, as soon as he is apprized of 
the same, he shall sign, seal, and transmit to the United 
States, by the most expeditious conveyance, a bond like 
the aforesaid, to be signed and sealed by two sureties 
who are permanent residents of the United States, and 
then sent to the Secretary of State for his approval, 
and to l^e lodged in the office of the Secretary of the 
Treasury. 

20. When the consul’s bond is approved, his com¬ 
mission will immediately be sent to the United States 
legation in the country to which his consular district 
belongs, if there be any; otherwise to himself. His 
consular passport will then be forwarded to him, the 
receipt of which he will immediately acknowledge. 


16 


At the same time, he will inform the Department of 
the place of his birth, and the State of which he was 
a citizen at the time of his appointment. 

21. If he is a naturalized citizen, he will transmit, 
with his bond, an attested copy of his certificate of 
naturalization. 

22. After receiving his passport, he will, with all 
convenient despatch, depart for the place of his desti¬ 
nation, giving notice to the Department of the time 
of his departure, and of the yessel in which he em¬ 
barks. 

23. After his arrival at his post, he will notify this 
Department, and, also, the Secretary of the Treasury, 
of the day on which he enters officially on the duties 
of his office. 


CHAPTER III. 

OF THE FORMALITIES TO BE OBSERVED BY A CONSUL AFTER EN¬ 
TERING UPON THE DUTIES OF HIS OFFICE. 

24. Upon the arrival of a consul at his post, he will 
give information thereof to the United States legation, 
if there be one accredited to the government of the 
country to which he is sent. 

25. It is the practice of the Department to send the 
consul’s commission to the legation, with instructions 
for the diplomatic agent to apply for the exequatur, 
whici officially recognises the consul, and enables him 
to discharge, without interruption, his consular duties. 

26. If there be no minister or minister resident of 
the United States in the country, the consul will im¬ 
mediately on his arrival transmit his commission to 
the proper department, and request an exequatur. 


17 


either case, he will ioform, in respectful terms, the 
authorities of the port or district to which he is sent of 
his appointment; and if he can obtain their consent to 
his acting as commercial agent before the receipt of 
his exequatur, he is authorized to do so. As soon as 
his exequatur is received, he must see that it is made 
public in the manner usual in the country. 

27. The commission and exequatur of the consul 
will enable him to exercise and enjoy all the rights, 
pre-eminences, privileges, and authorities, to the same 
of right appertaining, and such as are usually granted, 
to consuls in the country in which the consulate is 
situated. The consul will seek for no greater privi¬ 
leges without authority from this Department. 

28. It will be his duty to become conversant with all 
treaties and conventions existing between the United 
States and the country wherein he resides, and especi¬ 
ally with their respective tariffs and all enactments re¬ 
lating to trade between them, also with the municipal 
laws and local regulations, and, as far as possible, the 
language of the country in which he resides. 

29. Having obtained either his exequatur or per¬ 
mission to act as commercial agent, he will apply to 
the person having charge of the consular seal and the 
archives of the consulate to which he is appointed 
for their delivery to him, and, having made, jointly 
with his predecessor, if present, an inventory of the 
papers and other effects which it may contain, he 
will transmit a copy of such inventory, signed by both 
parties, or, in the absence of his predecessor, by him¬ 
self, to the Department. He may then take charge of 
the seal, archives, and effects of the consulate. 

3 


18 


30. Wherever such custom prevails, he will hoist the 
flag of his country and display the arms of the United 
States, as the signs of his authority. The flag is to be 
unfurled on the national holidays, and also, if such is 
the usual practice among the consuls of other nations 
at the place, at the consulate upon the approach and 
in the presence of an American vessel. It is to be 
lowered and raised, according to custom, as a salute 
on proper occasions; and to be kept one day at half- 
mast upon the death of any American ship-master or 
distinguished citizen within the consulate, or of a public 
officer at home. The arms of the United States should 
be placed over the entrance of the consulate, if allowed 
by the laws of the country. 

31. If there are any funds in the hands of his pre¬ 
decessor, he will take charge of them, unless they are 
the proceeds of the effects of an American citizen who 
died intestate more than a year previous, and which, 
according to the second section of the act of the 14th 
of April, 1792, 1 should have been remitted to the 
Treasury of the United States, in which case the con¬ 
sul who received the same shall make the remittance. 

32. Having entered on the duties of his office, the 
consul must immediately give notice thereof tb the 
Department of State, to the minister of the United 
States in the country in which such consul is appointed, 
and to the consuls of the United States residing in the 
same country and in the neighboring ports or cities of 
other countries. 

33. No consul is to absent himself from the country 
to which he is accredited, or from his consular district, 
for a longer period than ten days, without having pre- 

1 i Statutes at Large, 255. 


19 


viously obtained leave from the President of the United 
States; and during his absence for any period longer 
than that time, either with or without leave, his salary 
shall not be allowed him. 

34. Consuls are required to locate their consulates, 
in the places in which they are established, in as cen¬ 
tral a position as can be conveniently procured, and 
keep them open daily from ten o’clock in the morning 
until four o’clock in the afternoon—Sundays, holidays, 
and anniversaries excepted. (1) 


CHAPTER IV. 

INSTRUCTIONS RESPECTING THE CORRESPONDENCE OF A CONSUL WITH 
THE DEPARTMENT OF STATE. 

35. All communications addressed to this Depart¬ 
ment, as well as enclosures, must be written on cap 
paper, in a fair, round hand, leaving an inch margin 
on each side of the page. The distance between the 
written lines is to correspond with that of the ink 
lines, which are sent to each consul from the Depart¬ 
ment. (Form No. 2.) 

36. Consuls will instruct their agents to observe the 
same form. 

37. All despatches must be numbered, beginning at 
the commencement of each year. Each despatch is, as 
far as possible, to be confined to one subject. In 
transmitting enclosures in despatches, the contents of 
those enclosures are to be briefly stated in the body of 
the despatch, and attention is to be directed to such 
points contained in them as may appear to be particu¬ 
larly deserving of notice. 


1 Session Acts 1854-5, p. 623. 


20 


38. Should such enclosures be in any foreign lan¬ 
guage/ translations of them, together with copies in 
the original, are to be forwarded. 

39. Wherever it is mentioned in a despatch that a 
paper is enclosed, a line is to be made in the margin, 

(thus,-No 1,) and to such line is to be affixed 

the number corresponding to the number of the en¬ 
closure. 

40. Each series of enclosures is to be numbered anew 
in each despatch, commencing with No. 1. 

41. All despatches, and the enclosures, are to be en¬ 
dorsed according to the forms hereto annexed, (No. 3 
and No. 4.) The endorsement of the despatch will 
consist of the place where, and the time when, it was 
written, in the first line; the name of the writer in the 
second; the number of the despatch in the third; the 
number of its enclosures, if any, in the fourth; the 
word u Received” in the fifth, with a blank after it for 
the date of the day on which the said despatch shall be 
received; and in the sixth and following lines, a short 
abstract of its contents. The endorsement of the en¬ 
closure will state what the enclosure is, (whether it be 
a letter or any other document,) its date and its number; 
and it must also contain a reference to the despatch in 
which it is transmitted. 

42. All despatches are to be folded like those sent 
from this Department; gum, sealingwax, or wafers, 
are not to be put upon the despatches or the enclosures, 
but only on the envelopes which enclose them. 

43. Despatches are never to be antedated, and when 
returns, which are ordered to be transmitted u quar¬ 
terly,” “half yearly,” or “ annually,” cannot be made 
up on the last day of the quarter, half year, or year, as 



21 


the case may be, for want of sufficient information on 
that date, or for any other adequate reason, the returns 
are to be made up to that date, as soon as practicable 
thereafter. 

44. Returns ordered to be sent u quarterly,” are to 
be made up to the 31st of March, 30th of June, 30th 
of September, and 31st of December. Those ordered 
to be made up half-yearly, are to be made up to the 
30th of June and 31st of December; and those ordered 
to be “annually transmitted,” are to be made up to the 
31st of December. 

45. Returns ordered by special instruction or enact¬ 
ment, or by different sections of the general instruc¬ 
tions, are to be sent as enclosures in distinct despatches, 
each despatch relating solely to the return as ordered 
to be made in such intruction, enactment, or section. 

46. When there are more enclosures than one in a 
despatch, each enclosure is to be numbered in the order 
in which it is to be read. 

47. When printed papers are sent as enclosures in 
despatches, two copies, if they can be conveniently ob¬ 
tained, should be forwarded. 

48. A return must be rendered on the 31st of De¬ 
cember of each year, or as soon after as possible, of the 
number and dates of the despatches written during the 
year, and transmitted by the earliest ^conveyance, and 
if practicable, before the consul writes any despatches 
in the ensuing year. 

49. Private correspondence is not to be sent in the 
same envelope with official letters. Consuls are in¬ 
structed, upon no account, to correspond with the press 
or with private persons on public affairs, or their official 
business. 


22 


50. The consul will only hold correspondence on 
public matters, independently of that which his official 
duties require him to conduct with the local authori¬ 
ties and individuals of the place where he resides, with 
the Secretary and Assistant Secretary of State, the 
Secretary of the Treasury, with the United States lega¬ 
tion in the country where he resides, or with consuls or 
naval or military officers in the service of the United 
States who may be employed in the neighborhood, and 
to whom it may be necessary to communicate immedi¬ 
ately any event of public interest. 

51. Consuls will in no case recommend their private 
friends abroad or at home for employments of trust or 
profit under the government of the country in which 
they are resident. 

52. With these instructions the consuls will receive 
printed forms (see No. 5 and No. 6) for their guidance 
in making the customary “quarterly” commercial re¬ 
turns and statement of fees. 

53. The consul will forward to this Department, in 
connection with his quarterly returns, a general report 
on the trade of his consular district during the pre¬ 
ceding quarter, specifying the articles of import and 
export, the countries which supply the former and re¬ 
ceive the latter, the comparative increase or decrease 
in the amounts of the same, together with the proba¬ 
bilities for the future, and the causes in both cases for 
either; the general regulations of trade and their effects, 
the average market prices, within the quarter, of the 
staples of export and import, and the average rates 
of freight to the United States. He will also specify 
articles prohibited to be imported into his consular 
district, whether from the place of their growth or 


23 


production, or from other places, where changes have 
occurred since his last quarterly report; all privileges of 
importation or restrictions thereon, if such there be, and 
to what vessels they apply, and all differences in duties 
on articles imported in foreign or national vessels; all 
tonnage duties and other port dues, and all warehouse 
and sanitary regulations, and those relating to entry or 
clearance, where such exist and have been subjected to 
modification since his last quarterly report. He will 
also communicate details touching the employment of 
capital of the United States in his port and district; 
the consumption of their staple products, as well as of 
foreign products and the amount thereof imported in 
their vessels, and the aggregate of foreign tonnage 
employed in their trade; while he will not neglect to 
note the amount and character of the commerce of 
other countries at the place of his residence, in his 
laudable zeal to gather all available information touch¬ 
ing that which belongs exclusively to his own. In¬ 
creased interest in the statistics of foreign commerce, 
evinced by recent and repeated calls by Congress for 
all such information as may have come into the posses¬ 
sion of this Department, has caused more than ordinary 
care in the preparation of instructions upon this point, 
which it is hoped may not be without adequate response 
from the consular agents of the government abroad. 

54. The consul will send copies of all tariffs which 
may be published in the country in which he resides, 
and all changes and alterations therein as soon as made; 
all tonnage duties, other port dues, warehouse regula¬ 
tions; every law, edict, decree, royal order, proclamation 
or notice, in any manner affecting the commercial or 
other important interests of the United States; also, any 


24 


useful and interesting information relating to agricul¬ 
ture, manufactures, population, and public works. In all 
that relates to scientific discoveries to progress in the 
useful arts, and to general statistics in foreign countries, 
consuls are expected to communicate freely and fre¬ 
quently with the Department. And, generally, they 
are expected, in their correspondence with the Depart¬ 
ment, to note all events occurring within their consu¬ 
lar districts which affect beneficially or otherwise the 
navigation a‘ d commerce of the United States. They 
will also note the establishment of new branches of 
industry, the increase or decline of those before estab¬ 
lished, and communicate all the information which they 
may be enabled to obtain, calculated to benefit our 
commerce and other interests, and the best means of 
removing any impediments that may have retarded 
their promotion. 

55. They will likewise specify the number of vessels, 
with the amount of their tonnage, which have arrived 
and departed; the number of seamen, and what por¬ 
tion of them are protected; and, as nearly as possible, # 
the nature and value of the cargoes of the vessels, and 
where they were produced, 1 with such remarks as may 
be appropriate and useful. 

56. By an act of Congress approved August 16, 
1842, 2 it is made “ the duty of the Secretary of State to 
lay before Congress, annually, at the commencement of 
its session, in a compendious form, all such changes 
and modifications in the commercial systems of other 
nations, whether by treaties, duties on imports and 
exports, or other regulations, as shall have come to the 
knowledge of the Department ” 

1 Session Acts 1854-’5, p. G26. 2 v Statutes at Large, p. 507. 


57. Consuls will, therefore, transmit, at the same time 
with their quarterly returns, but in separate communi¬ 
cations, statements of all changes in the commercial 
systems of the governments to which they are ac¬ 
credited, in accordance with the requisitions of the 
act specified, during the three months immediately 
preceding, together with copies of all commercial regu¬ 
lations, enactments, decrees, royal orders, modifications 
of revenue laws and tariffs, and of all commercial rules 
and instructions whatsoever, which may have appeared 
during the period named. 1 


CHAPTER V. 

OF THE RECORDS AND PAPERS OF THE CONSULAR OFFICE. 

58. The following record books shall be provided 
and kept in each consulate and commercial agency: A 
letter book, into which are to be copied all official notes 
and letters other than those addressed to the Depart¬ 
ment of State; a record book, into which are to be 
copied all letters written by the consul or commercial 
agent to the Department of State; a record book, into 
which are to be copied the quarterly returns of the ar¬ 
rival and departure of American vessels, their inward 
and outward cargoes, tonnage, &c., and also statements 
of fees, and all commercial reports: a record book, 
for the entry of protests and all other official consular 
acts; and, at seaports, a book wherein shall be recorded 
the lists of crews, and the tonnage, the owner or owners’ 

1 la accordance with a special circular, a statement of commercial changes 
as here required, will be prepared and transmitted to the Department, in one or 
more communications, so as to be received by November 1, 1855, embracing 
all changes which may have appeared during the year ending September 30. 

4 


26 

name and the place to which she belongs, of every Ameri¬ 
can vessel which arrives; also a fee book, as hereafter 
more particularly described. 

59. When a paper of any description shall be entered 
or recorded in either of the said books, the same shall 
be indexed by a reference both to the name of the 
author and the subject of the paper. 

60. The answers received to official letters and all 
other papers transmitted to the consulate, intended to 
be permanently kept there, shall be put in a proper 
place, labelled according to their subject matter, until 
a sufficient number shall accumulate to form a volume; 
when they shall be bound up and indexed in the 
same manner as is directed with respect to the other 
records. 

61. All the consular books must be regularly paged; 
but where blanks occur (as in the book of original 
letters from the covers and unwritten pages) a cross 
must be made over the blank page, and it is not to be 
numbered. 

62. The consular books are to be kept distinct from 
those of the consul’s private affairs; and if the consul 
is u at liberty to transact business,” his consular busi¬ 
ness should, if possible, be transacted in a separate 
apartment from that in which his ordinary commercial 
or other affairs are carried on, designated by the arms 
of the United States exhibited at its entrance, wherever 
such an exhibition of the arms is not prohibited by the 
local regulations. 

63. The consul is instructed to take care that the 
archives are kept in proper order; and with this view, as 
well as to facilitate reference to previous correspond¬ 
ence, he will keep in the consular office a register or 


27 


index of all the documents, papers, letters, and books 
which have been, or which may be, at any time re¬ 
ceived or forwarded by him on matters connected with 
his official duties. 

64. The register should be divided into separate 
heads: 

1st. Correspondence with the Department of State; 

2d. With the United States legation in the country 
in which he is stationed; 

3d. With the local authorities; 

4th. With other United States consuls and consular 
agents; 

5th. Miscellaneous correspondence: and a complete 
index of names and subjects, should be attached 
to it. 

This register is to be handed over by the consul, 
with the archives complete, whenever the consulate 
may be delivered to the temporary or permanent 
charge of any other person authorized to receive them. 

65. The originals of all despatches and letters ad¬ 
dressed to the consul, and copies of all that are written 
by him in his official capacity, including all official 
reports and returns, all books presented to the con¬ 
sulate, or sent to it by the Department, also the fee 
and record books, are to be considered as official doc¬ 
uments, and are to be deposited amongst the consular 
archives, after being duly registered, and turned over 
with the effects of the consulate, together with the 
seal, press, arms, and flag, and all other property 
belonging to the United States, to his successor in 
office. 


CHAPTER VI. 


OF THE DUTIES OF CONSULS IN RELATION TO INTESTATES* ESTATES. 

66. The duties of consuls respecting the property of 
Americans relate mostly to the personal estates of citi¬ 
zens of the United States, who die intestate within their 
respective consular districts, or to wrecks and other 
abandoned property belonging to them, for which no 
owner or legal representative appears. 1 

67. For the information of the representatives of the 
deceased, the consul is directed to cause a notice of the 
intestate’s death to be published in a newspaper of the 
consular district, and also to inform this Department 
thereof, that the same may be published in the State 
to which the deceased belonged; and the consul will 
also furnish any information which he may have obtained 
respecting the residence of the family and frifends of 
the deceased. 

68. By the second clause of the second section of 
the act concerning consuls and vice consuls, approved 
April 14, 1792, whenever a citizen of the United States, 
other than seamen belonging to any ship or vessel, 
shall die within the consular district, it is made the 
duty of the consul or vice consul to take possession of 
his effects, and to sell at public auction such part of 
them as may be of a perishable nature, and such 
further part as may be necessary for the payment of 
the debts of deceased. 2 

69. But in order to execute this power, the follow¬ 
ing are prerequisites: 

That the laws of the country permit such administra¬ 
tion, or that it be stipulated by treaty; and 

l Hen shaw’s Manual, p. 101. 2 \ Statutes at Large, p. 255. 


29 


That the person has died without any legal repre¬ 
sentative, partner in trade, or trustee, to take care of 
his effects. 

70. An inventory must be taken of all the effects of 
the deceased, with the assistance of two merchants of 
the United States, or, for want of them, of any other 
two respectable persons. 

71. In performing this branch of the consular duty, 
great attention is required; merchants, if possible, of 
great respectability are to be selected as the assistants 
of the consul. Although appraisement is not men¬ 
tioned in the act, the consuls are instructed to have the 
apparent value of each article affixed to it. 

72. If among the papers of the deceased are found 
any evidences of debts, although they may not be due 
in the consular districts, yet they are to be placed in 
the inventory for the information and security of indi¬ 
viduals interested, in the United States. 

73. The commercial books of the deceased are to be 
placed in the inventory, and particularly described, 
mentioning the number of pages eaca of the said books 
contains; and the consul shall place a certificate, signed 
by himself, at the beginning and the end of each book, 
in such manner as to prevent any addition being made 
to them. 

74. The letter books of the deceased are compre¬ 
hended in the term commercial books. 

75. This inventory must be entered in the consular 
record book; and, as doubts may arise whether this is 
such a document as is comprehended in the provisions 
of the first clause of this section of the law, the consul is 
instructed to make two originals, that is to say, that the 
inventory be signed by him, and by his two assistants, 


30 


both in the book of records in which it is entered, and 
in the authenticated copy which must be transmitted 
without delay to the Secretary of State. 

76. The consul will also collect the debts due to the 
estate of the deceased in the country where he died, 
and, with the amount thus collected, pay the debts 
which the deceased may have there contracted; but he 
is to pay no claim, not reduced to a judgment, for 
damages on account of any wrongful act, alleged to 
have been done by the deceased. 1 

77. If among the “ effects,” (which is a word of very 
comprehensive signification, and comprehends property 
of every description, including debts due,) of the de¬ 
ceased, are found certificates of foreign stocks, loans, 
or other property, the consul is directed to charge on 
the amount thereof such commissions as are allowed by 
existing laws on the settlement of estates of American 
citizens by consuls and commercial agents, report the 
same to the Treasury Department, and hold the amount 
subject to its order. 2 But he is not to embrace in the 
inventory such personal estate as the deceased may 
have left in the United States, or beyond the consular 
district. 

78. The consul, from the necessity of the case, acts 
as the collector of the effects within the consulate, but 
the provisions of law do not extend his power beyond 
this necessity. 

79. The personal estate at home remains to be ad¬ 
ministered by the legal representative at home, accord¬ 
ing to the laws of the State or district to which the 
deceased belonged. Under the provisions of the act 
first above mentioned, the consul is “to take possession 


1 Sturgis ys. Slacura, 18 Pick., p. 36. .8 Session Acts, 1854-’5, p. 626. 


31 


of tlie personal estate left by any citizen of the United 
States,” where u the laws of the (foreign) country per¬ 
mit,” which, of course, must be the personal estate left 
within the jurisdiction of such foreign country. He is 
only to collect “the debts due to the deceased in the 
country where he died.” 

80. In like manner, he is not to pay the debts due 
from the deceased at home, but only such debts as “he 
shall have there (in the foreign country) contracted.” 1 

81. The consul is further directed to sell at auction 
such part of the estate as shall be of a perishable 
nature. 2 

82. All sales of the property of the deceased must 
be “ at auction, after reasonable public notice.” In the 
execution of this duty, the consul is instructed to give 
the same previous notice that is directed by the laws 
of the country for the judicial sale of property in 
execution, and at some public place; but whether it 
be required in judicial sales or not, notice must be 
given in at least one of the gazettes of the place, if any 
be printed there, both in English and in the language 
of the country. 

83. No property shall be sold as being of a perish¬ 
able nature, until it has been viewed by two respect¬ 
able merchants, and by them, under oath, declared to 
be of that description. 

84. If the proceeds of such sales, with the funds of 
the estate on hand, should not be sufficient to liquidate 
the legal claims against the estate, the consul is author¬ 
ized to dispose of any other portion of the property 
which may be necessary for that purpose. 

] Instructions to Consul Walsh, September 2, 1845. 

2 i Statutes at Large, p. 255. 


32 


85. In one year after the death of the intestate, the 
consul is also directed, by the second section of the 
act aforesaid, to transmit the balance of the estate, 
(after paying the debts and other lawful charges,) to 
the Treasury of the United States, in money, to be 
holden in trust for the legal representatives. But if at 
any time before such transmission, the legal represent¬ 
ative of the deceased appear and demand the effects in 
the hands of the consul, he shall deliver them up, the 
fees being paid, and shall cease his proceedings. 

86. In the execution of the duty prescribed by the 
preceding article, the consul is hereby instructed to 
keep a regular account of all moneys received, as well 
for effects sold as for credits collected, and all sums 
expended, taking duplicate receipts, expressing on 
what account the sums are paid, and numbering them 
regularly; one of each of the said duplicates to be kept 
by the consul, the other to be delivered to the repre¬ 
sentative of the deceased, or transmitted to the 
Treasury, if no representative appear. 

87. He must also enter on his consular books a regu¬ 
lar account between himself and the estate of the de¬ 
ceased, in which he shall enter to his debit all the 
moneys and effects that come into his hands; and to his 
credit all the payments she may make; and, finally, the 
balance that he may deliver over or remit, so as to 
close the account. A copy of this account shall be 
delivered to the representative of the deceased, or 
transmitted to the Treasury, as the case may be. 

88. As soon as any estate shall be finally settled, so 
far as he is concerned, the consul shall give notice to 
the Department, designating the balance, in money, 


33 


the effects which have been delivered to the repre¬ 
sentative of the deceased, as the case may be. 

89. If there should be several parties, each claiming 
to be the representative of the deceased, and demand¬ 
ing the effects, the consul must direct the parties to 
determine their rights in the tribunals of the country. 

90. He should at all times be prepared, and he is 
expressly required, to deliver over the effects and 
papers of the estate in his possession at any stage of the 
proceedings, after deducting the fees and expenses, to 
any legal representative of the deceased, or appointed 
trustee who presents unquestionable authority to act 
as such. 

91. There is a provision of the act of 1st March, 
1855, namely, the main one of the 21st section, which 
demands special consideration. It is in the following 
words: 

“If any American citizen dying abroad shall, by will or 
any other writing, leave special directions for the manage¬ 
ment and settlement by the consul of the personal or other 
property which he may die possessed of in the country where 
he may die, it shall be the duty of the consul, where the 
laws of the country permit, strictly to observe the directions 
so given by the deceased. Or, if such citizen so dying shall, 
by will or any other writing, have appointed any other per¬ 
son than the consul to take charge of and settle his affairs, 
in that case it shall be the duty of the consul, when and so 
often as required by the so-appointed agent or trustee of the 
deceased, to give his official aid in whatever way may be 
necessary to facilitate the operations of such trustee or agent, 
and, where the laws of the country permit, to protect the 
property of the deceased from any interference of the local 
authorities of the country in which he may have died ; and 
to this end it shall also be the duty of the consul to place 
his official seal on all or any portions of the property of the 
5 



34 


deceased as may be required by the said agent or trustee, 
and to break and remove the same seal when required by 
the agent or trustee, and not otherwise; he, the said consul 
or commercial agent, receiving therefor two dollars for each 
seal, which, like all other fees for consular service, includ¬ 
ing all charges for extension of protest, as also such com¬ 
missions as are allowed by existing laws on settlement of 
estates of American citizens by consuls and commercial 
agents, shall be reported to the Treasury Department, and 
held subject to its order/' 1 

92. In the execution of this provision, consuls will 
need to exercise much discretion and care. 9 

The new act provides, in the first place, that if the 
deceased shall “by will or any other writing leave 
special directions for the management and settlement, 
by the consul , of the personal or other property which 
he may die possessed of in the country where he may 
die,” it shall be the duty of the consul to observe those 
directions. The sole effect of this part of the section 
is simply that, in the performance of such acts regard¬ 
ing the estate as the consul may, by virtue of the act 
of April 14, 1792, lawfully perform, namely, taking 
the custody of the property, preserving it from waste, 
collecting credits, paying local debts, and selling the 
'personal estate for transmission to the treasury, the 
consul shall, in the absence or non-appearance of the 
executor, co-partner, or other “legalrepresentative” of 
the deceased, observe such directions as the latter may 
have given him as to such mere provisional acts of 
consular intervention in the estate. 

93. The new act provides, in the second place, that 
“if such citizen on dying shall, by will or any other 

1 Session Acts 1854-’5, p. 525. 

2 Opinion of Attorney General, Juno 2, 1855, p. 37, et seq. 


35 


writing, have appointed any other person than the con¬ 
sul to take charge of and settle his affairs,” as “agent 
or trustee,” then the consul shall officially aid such agent 
or trustee in his duty, and shall, so far as he lawfully 
may, secure the property of the deceased to such agent 
or trustee, as against the interference of the local 
authorities. 

This enactment, like the foregoing one, must be under¬ 
stood as having reference only to such acts of a law¬ 
fully appointed “agent or trustee of the deceased,” as 
any such “agent or trustee ” may perform in the absence 
of the “legal representative” of the deceased, who, 
on his appearance, will supersede, not only the consul, 
but any such provisional agent; and in case of contro¬ 
versy between such agent or trustee and the legal repre¬ 
sentative of the deceased, it will be the duty of the 
consul to aid the latter, to whom the paramount and 
exclusive right to control the property belongs in all 
circumstances. 

94. When the act proceeds to say that the consul 
must obey such directions, regarding the settlement 
and the disposal of the decedent’s “ personal or other 
property,” as the decedent may have given by “will or 
any other writing ,” and deliver it over to, and protect 
in the possession of it, the agent whom the deceased 
may have appointed “by will or any other writing,”— 
its injunction must be understood with the necessary 
legal reservations. It is obvious that a will, to have 
legal effect, must be a proved will; and a will perfectly 
valid in form, may be null because obtained by unlaw¬ 
ful influence. 1 

Except in the mere temporary settlement, collection, 

1 WiUiams on Exec., vol. 1 , jfp. 42, 43 


36 


and custody of the property of a decedent, no agent 
appointed by will or otherwise, no public officer em¬ 
powered by act of Congress, can safely venture to deal 
with a decedent’s estate; for either that estate has been 
disposed of by lawful testamentary disposition to de¬ 
visees or legatees, or it has become the property of the 
creditors of the decedent, or it has descended upon 
persons legally entitled by marriage or kinship; and, 
in either case, if it be personal property, it must pass 
through the hands of a duly appointed and judicially 
recognised executor or administrator. 

What happens frequently in the case of wills, not¬ 
withstanding the formalites of law with which their 
execution is accompanied, can happen still more easily 
in the case of any other writing, which comprehends 
any writing, however informal it may be, though with¬ 
out seal, notarial acknowledgment, or attestation of 
witnesses. 

Now, the consul is, by the law of nations and by 
statute, the provisional conservator of the property 
within his consulate belonging to his countrymen 
deceased therein. 

That general duty of consuls is not repealed by the 
late act; on the contrary, it is fully recognised. The 
special duty of the consul, therefore, as defined by the 
act, must be reconciled with his paramount general 
duty, and with the general principles of right. 

Hence it follows, that, if any person other than the 
legal representative of the deceased—that is, other than 
his heir-at-law, co-partner, trustee, or duly appointed 
executor or administrator—claim the property in virtue 
of some “writing” of appointment, the consul must 
look well to the character of the writing, that of the 


37 


person presenting it, and the circumstances under 
which it was obtained; for the statute would scarcely 
protect him, if he should hastily deliver up the property 
to some person who should have obtained an order to 
that effect by improper practices on a dying man in a 
foreign land. 1 

95. It behooves the consul to consider well, before 
he presumes to follow, in anything beyond the acts of 
custody , settlement , and collection prescribed by the act 
of April 14, 1792, directions of the decedent by writing 
not possessed in law of the force of a testamentary dis¬ 
position, or directions of any agent of the deceased, 
however nominated, unless that agent be the duly ap¬ 
pointed executor or administrator. Otherwise, the 
consul may be called to account by some creditor of 
the deceased, or by a lawfully appointed executor of 
his, or by his family and heirs-at-law. 

96. In short, the consul should bear constantly in 
mind that he cannot as consul administer on the estate, 
nor as consul aid any other person in so administering, 
without judicial authorization; and that the whole ex¬ 
tent of his consular authority is to guard and collect 
the assets of a decedent, and to transmit them to the 
United States, or to aid others in so guarding, collect¬ 
ing, and transmitting them, to be disposed of here pur¬ 
suant to the law of the decedent’s State. 


i Letter of Attorney General, July 10, 1855. 


38 


CHAPTER VII. 

OF THE DUTIES OF CONSULS IN RELATION TO WRECKS. 

97. By the third section of the act of Congress of 
April 14, 1792, the “consuls and vice consuls, in cases 
where vessels of the United States shall be stranded on 
the coast of their consulates, respectively, shall, as far 
as the laws of the country permit, take proper mea¬ 
sures, as well for saving such vessels, their cargoes, and 
appurtenances, as for storing and securing the effects 
and merchandise saved, and for taking an inventory 
and inventories thereof; and the merchandise and 
effects saved, with the inventory and inventories, shall, 
after deducting therefrom the expense, be delivered to 
the owner or owners. But no consul or vice consul 
shall take possession of any such goods, wares, mer¬ 
chandise, or other property, when the master, owner, 
or consignee thereof is present, or capable of taking 
possession of the same.” 1 

98. In the execution of the duties prescribed by this 
part of the act, the consul is instructed that all vessels, 
parts of vessels, and any portion of their cargo belong¬ 
ing to citizens of the United States, saved and brought 
into the consular jurisdiction after being wrecked, or 
in consequence of any disaster at sea, are to be pro¬ 
ceeded with in the same manner as if the vessel had 
stranded within the consular jurisdiction; and if salvage 
shall be claimed and allowed by a competent tribunal, 
the remainder of the effects, or the balance of their 
proceeds, if sold, shall be disposed of in the same man¬ 
ner as is directed in the last chapter, with respect to 
intestates’ estates; provided, in the case of salvage, 

1 i Statutes at Large ; p. 255. 


39 


that the court deciding the same will permit the consul 
to receive the effects and balance, after paying the 
salvage. 

99. In some countries (as in Sweden) chartered com¬ 
panies have the privilege of taking possession of all 
property wrecked; in others, it may be vested in par¬ 
ticular magistrates or officers. In all these cases, the 
consul is not to interfere with the legal function of the 
proper officer, but he may demand, as the representa¬ 
tive of the absent master or owner, or as his official 
adviser, if he be present, to assist at the taking of the 
inventory, the sale, and all other proceedings in rela¬ 
tion to the property. It is his duty to protect the 
interest of the owner, and, if his reasonable requests 
are not complied with, to take the necessary evidence 
of the facts in the case, and transmit it to the Depart¬ 
ment of State. 

100. When any accident of this kind happens within 
his jurisdiction, the consul or commercial agent is to 
give immediate notice to the Department of State, 
naming the vessel and her owners or master, and giving 
in detail as many of the circumstances attending the 
loss of the property as may be known at the time. 

101. When there is no impediment from the laws of 
the country, all proceedings in relation to property 
wrecked are to be the same as those prescribed in the 
case of property of intestates, and generally whatever 
effects, whether wrecked, abandoned, or otherwise un¬ 
represented within the consulate, may be obtained in 
undisputed possession by the consul, as the property 
of any citizen of the United States, he is instructed to 
dispose of them in the same manner as the property 
of intestates. 1 

1 Toler vs. Wbite, Ware, p. 227. Henshaw’s Manual, p. 113. 


40 


102. He will state in his report the names of the 
passengers and crew who may have perished, and also 
of the survivors, and what disposition has been made 
of them. 

He will promptly render all the assistance in his 
power to his shipwrecked countrymen, and institute, 
whenever it is practicable, energetic proceedings for 
the protection of their property. 

He will carefully collect and preserve all the papers 
and documents relating to the ship or its cargo, or to 
the passengers, and deliver them to the parties to 
whom they belong, or to their representatives, or, in 
the event of their death or non-appearance, will trans¬ 
mit them to this Department. 

Whenever it is necessary for the safety of their 
property, the consul will apply to the local authorities 
for assistance. 

Whenever a consul or commercial agent shall receive 
authentic intelligence of the rescue from shipwreck of 
seamen or citizens of the United States by the master 
or crew of any foreign vessel, he will, without delay, 
transmit to the Department a statement of the facts, 
including the name of the master of the foreign vessel 
and of the country or port to which he may belong, 
and also the names of such of the crew as may have 
especially distinguished themselves. 


41 


CHAPTER VIII. 

OF THE DUTIES OF CONSULS IN RELATION TO TEE MASTERS OF 
AMERICAN VESSELS. 

103. By an act of the Congress of the United States, 
passed the 28th February, 1803, it is in substance 
directed that every master of an American vessel shall, 
on his arrival at a foreign port, deposit his register, 
sea letter, and Mediterranean passport, with the consul, 
vice consul, commercial agent, or vice commercial 
agent, under a penalty of five hundred dollars, which 
the consul, vice consul, &c., &c., may recover in his 
own name, for the use of the United States, and that, 
whenever a clearance from the proper officer of the 
port shall be produced to the consul, he shall deliver 
up all the ship’s papers, provided the master shall have 
complied with the provisions of the act of 28th Feb¬ 
ruary, 1803, and the act of 14th April, 1792/ to which 
it is a supplement. 

104. Where vessels merely touch at a foreign port 
to try the market, or are accidentally driven into such 
port, and make no formal entry, it does not constitute 
an u arrival ” within the meaning of the act, and the 
ship’s papers cannot be required by the consul. 2 

105. As some doubt has arisen in regard to what • 
constitutes an u arrival,” the attention of consuls and 
commercial agents is particularly called to the follow¬ 
ing extract from an opinion of the Supreme Court of 
the United States: 3 

“Our view, then, is, that the term arrival as used in this 

1 Statutes at Large, p. 203. 

Parsons vs. Hunter, 2 Sumner, p. 414. 

3 ix Howard, p. 372 


0 


act must be construed according to the subject-matter—to 
the object of the provision, and the expressions in other sec¬ 
tions of this act, and in other like acts; and that according 
to all these, a vessel putting into a foreign port to get inform¬ 
ation, and getting it without going at all to the upper 
harbor or wharfs, and not entering or repairing or breaking 
bulk, or discharging seamen, or being bound homewards, so 
as to take seamen, or needing the aid of the consul in any 
respect, but leaving the port in a few hours, not doing any 
of these, nor being required to, and duly entering and de¬ 
livering her cargo at a neighboring port, where it had been 
sold, and there depositing her papers with the vice consul, 
connot be said to have arrived at the first port, so as to come 
within the spirit of the penal provision, as to depositing 
her papers with the consul. So far as regards precedents 
on this matter, the actual decisions of one court, and the 
opinions of two attorneys general are in favor of our con¬ 
clusion.’ ’ 

10G. The opinion of the Attorney General of Octo¬ 
ber 17th, 1853, is in accordance with the doctrine laid 
down above. It is also stated in the same opinion, 
that the body of the second section of the act of 1803 
contemplates an arrival at a foreign port, with a 
clearance from the proper officer of the port. It is the 
production of the clearance to the consul which gives 
to the master the right to demand a return of the ship’s 
papers, and imposes on the consul the duty of return¬ 
ing them. 

107. The proviso to the section allows the consul, 
notwithstanding the clearance from the proper officer 
of the port, to detain the ship’s papers until certain 
requirements of law shall have been complied with: 
which are the payment of the fees due the consul for 
his services; the payment to him of three months’ pay 
additional to wages due, for every discharged seaman 


43 


who is designated on the certified list of the ship’s 
company as a citizen of the United States; and the 
taking on board, at the request of the consul, of desti¬ 
tute mariners for transportation to the United States. 

108. This’right of the consul attaches to the regis¬ 
ter and other papers when they shall have been law¬ 
fully deposited with him; but the statute does not 
compel the deposit for the purpose of giving the right 
of detention. 

109. Neither the section of the act which regards 
discharged seamen, nor that which provides for dis¬ 
tressed seamen, nor the regulation as to the consul’s 
fees, requires a deposit of the register and other papers, 
although the former makes it the duty of the master to 
exhibit to the consul a certified list of the ship’s com¬ 
pany. And the proviso above cited does not enlarge 
the scope of the other provisions of law, as to the de¬ 
posit of the papers ; it only releases the consul from 
the duty, which would otherwise be imperative upon 
him, of returning the papers upon exhibition of the 
clearance alone. 

. 110. By the first section of the act of 1803, it is 
made the duty of the consul, immediately on the arri¬ 
val of an American vessel in his consulate, should the 
master neglect to deliver his ship’s papers, as he is 
directed by law, to apprize him of the necessity of 
• so doing, by showing him the law that requires it, and 
apprizing him of the penalty he will incur by refusal 
or neglect. If he fail to comply, a certificate of the 
fact, under the consular seal, must be immediately sent 
to the Department, specifying a description of the ves¬ 
sel, the port to which she belongs, where bound, and 
the usual residence of the master. In such a case, it is 


44 


desirable that the consul should send some other evi¬ 
dence of the arrival and departure of the delinquent 
master with his vessel, besides that of his own certifi¬ 
cate, as it has been held that such evidence of that fact 
is not sufficient. 1 

111. When the ship’s papers are received, they are 
to be kept together in as safe a place as possible, to 
guard against fire and other accidents; and the consul, 
on receiving such papers, shall give a certificate there¬ 
of, or a receipt, under seal, and make an entry in his 
consular record, specifying the time of delivery, the 
name of the vessel, the master, and the character of the 
papers deposited. 

112. Whenever the master shall produce the clear¬ 
ance of his vessel, and shall have complied with the 
directions of the act above mentioned, having paid 
every lawful requisition of the consul and of the local 
authorities, the consul shall, without delay, deliver up 
the papers, with a consular certificate, under seal, of the 
time of such delivery, and make an entry of the like 
period in his consular record. 

113. If any of the seamen are discharged, the master 
must pay three months’ wages of each of them as 
shall appear to be American citizens. 

114. If a vessel be bound for a port in the United 
States, and there are destitute American seamen in the 
port, the master is required to take such seamen on * 
board as he shall be requested to do by the consul, not 
exceeding two seamen for every one hundred tons bur¬ 
den of the vessel, on the terms on which he may agree 
with the cousul, not exceeding ten dollars for each 
seaman. 2 To enable themaster of the vessel to obtain 

1 i Sumner, p. 355. 2 ii Statute at Large 204. 


45 


the payment specified, the consul will give him a certifi¬ 
cate, stating the names of the seamen placed on board,, 
and the amount to be paid for their passage; on which, 
upon the arrival of the vessel in a port of the United 
States, an endorsement must be made by the collector 
of the customs at such port, stating that such seamen 
have arrived in said vessel in his district. When the 
certificate so endorsed is received at the Treasury 
Department, the amount will be paid to its holder. 

115. He must pay the fees for the following services, 
or such of them as have been rendered by the consul 
for the master or his vessel, according to the rules 
established by law, that is to Say: 

For authenticating, under the consular seal, any act 
whatever which may be made or passed in by the 
master, or at his request, for the concerns of the vessel, 
or its owners or freighters, two dollars ; 

For receiving and delivering ship’s papers, half cent 
on every ton, registered measurement, of the vessel for 
which the service is performed; 

For every seaman who may be discharged or shipped 
at the consulate or commercial agency, or in the port 
in which they are located, one dollar; which shall be 
paid by the master of the vessel. 1 


1 Session Acts 1854*55, p. 624. 


46 


CHAPTER IX. 

OF THE DUTIES OF CONSULS IN RELATION TO SEAMEN OF THE 
UNITED STATES. 

116. It is provided by the 1st section of the act ap¬ 
proved 28th February, 180S, 1 that before a clearance 
be granted to any vessel bound on a foreign voyage, 
the master thereof shall deliver to the collector of cus¬ 
toms, a list containing the names, places of birth and 
residence, and a description of the persons who com¬ 
pose his ship’s company; to which list, the oath or 
affirmation of the captain shall be annexed, that the 
list contains the names of his crew, together with the 
places of their birth and residence, as far as he can 
ascertain them; and the collector shall deliver to 
him a certified copy thereof: and the master shall 
moreover enter into bond with sufficient security, in 
the sum of four hundred dollars, that he shall exhibit 
the aforesaid certified copy of the list to the boarding 
officer, at the first port in the United States at which 
he shall arrive on his return thereto, and then and 
there produce the persons named therein to the boarding 
officer, whose duty it shall be to examine the men with 
such list, and report the same to the collector; and it 
shall be the duty of the collector at the port of arrival, 
(when the same is different from the port from which 
the vessel originally sailed,) to transmit a copy of the 
list so reported to him to the collector of the port 
from which the vessel originally sailed. This certiged. 
crew list is to be presented by the shipmaster, to the 
consul or commercial agent in a foreign port, when- 


1 ii Statutes at Large, p. 203. 


47 


ever any change is to be made in * it. It should be in 
the same handwriting throughout, 1 with no erasure, 
interlineation, or mark, thereon, unless made by a 
consul or some other authorized agent. 

117. It is further provided, that the bond shall not 
be forfeited on account of the failure of the master to 
produce any of the persons, named in the list, who 

* may be discharged in a foreign country with the 
consent of the consul or vice consul, commercial agent 
or vice commercial agent, there residing, signified 
in writing, under his hand and official seal, nor on 
account of any such person dying or absconding or 
being forcibly impressed into other service, of which 
satisfactory proof shall be exhibited to the collector. 

118. Whenever a vessel belonging to'an American 
citizen shall be sold in a foreign port, or be found 
unseaworthy in consequence of some decay or defect 

*at the inception of the voyage, and her company dis¬ 
charged, or whenever a mariner, a citizen of the United 
States, shall, with his own consent, be discharged in a 
foreign country by the master from a registered ves¬ 
sel of the United States, or if any such mariner shall 
claim it, and be discharged on account of unusual and 
cruel treatment, fairly proven, though he may have 
deserted for the same, and have been retaken by the 
consul, 2 it is the duty of the master or commander to 
produce to the consul, vice consul, commercial agent, 
or vice commercial agent, the list of the ship’s com¬ 
pany, certified according to the first section of the act 
of February 28, 1803, and to pay to such consul, &c., 
&c., for every mariner so discharged, being designated 

2 Ware’s R , p. 53. 


l v Statutes at Large, p. 394. 


48 


on such list as a citizen of the United States, three 
months’ pay over and above the wages which may be 
due to such mariner; two-thirds to be paid by the con¬ 
sul to the mariner so discharged upon his engagement 
on board of any vessel to return to the United States, 
and the remaining third to be retained for creating a 
fund for the payment of the passage of mariners, 
citizens of the United States, who may be desirous of • 
returning to the United States, for the maintenance of 
American seamen who may be destitute in such port; 
and the sums retained for such fund shall be accounted 
for to the Treasury every six months by the person 
receiving the same. 

119. The under officers (below that of captain) are 
included in the provisions of this section ; but the two 
months’ wages are not to be paid in any case, unless 
the person so discharged has engaged on board of some 
vessel to return to the United States, and does not . 
previous to his sailing become a change upon the 
consulate. 

120. If no occasion offers of a direct return, an en¬ 
gagement on board of a vessel ultimately to return 
will be sufficient; or if no such vessel offers, the sea¬ 
man will be entitled to his two months’ wages on his 
shipping for an intermediate convenient port, provided 
the consul has incurred no expenses which will absorb 
a part or the whole thereof; and a statement of the 
circumstances should at the same time be transmitted 
to the consul at such intermediate port. 

121. By the fourth section of the act of 28th Feb¬ 
ruary, 1803, it is made the duty of consuls to provide 
for the mariners of the United States who may be 
found destitute within their districts, sufficient subsist- 


49 


ence and passages to the United States, in the most 
reasonable manner, at the expense of the United States, 
subject to such instructions as the Secretary of State 
shall give; and the section also provides for the man¬ 
ner in which such mariners are to be transported to the 
United States. 

122. In order that consuls may understand what 
seamen are embraced within the provisions of the 
several acts of Congress herein mentioned relative to 
the relief of destitute seamen, the payment of extra 
Avages in cases of discharges from vessels and the pas¬ 
sages of destitute seamen to the United States, they 
are instructed that all seamen who are citizens of the 
United States, except such as are regularly shipped in 
foreign vessels, and all foreigners regularly shipped in 
American vessels at any port in the United States, are 
to be regarded as American seamen and citizens within 
the provisions of said acts. 

The relief to be provided shall include board, 
lodging, and medical attendance, and clothing when 
necessary: all to be on the most reasonable scale con¬ 
sistent with the comfort and proper support of the 
individual. 

Persons applying for relief must be examined touch¬ 
ing the manner of their being left destitute; and if 
it shall appear from such examination that they have 
been discharged from any American vessel contrary to 
the provision of the third section of the act of 28th 
February, 1803, or the 15th section of the act of 1st 
March, 1855, or that any other provisions of the said act 
or other laws of the United States have been violated, 
in every such case it shall be the duty of the consul to 
transmit a copy of the examination of the mariner to 
7 


this Department, with such other information as may 
enable it to cause prosecution to be instituted for such 
breach of the laws, designating the place at which the 
necessary witnesses will probably be found. 

123. It is provided by the fifteenth section of the act 
of March 1, 1855, 1 that no consul or commercial agent 
of the United States shall discharge any mariner, being 
a citizen of the United States, in a foreign port, with¬ 
out requiring the payment of the two months’ wages to 
which said mariner is entitled under the provisions of 
the act of February twenty-eight, eighteen hundred 
and three, unless, upon due investigation into the 
circumstances under which the master and mariner 
have jointly applied for such discharge, and on a 
private examination of such mariner by the consul or 
commercial agent, separate and apart from all officers 
of the vessel, the consul or commercial agent shall be 
satisfied that it is for the interest and welfare of such 
mariner to be so discharged; nor shall any consul or 
commercial agent discharge any mariner as aforesaid 
without requiring the full amount of three months’ 
wages, as provided by the above-named act, unless 
under such circumstances as will, in'his judgment, 
secure the United States from all liability to expense 
on account of such mariner; but in the cases of stranded 
vessels, or vessels condemned as unfit for service, no 
payment of extra wages shall be required; and where 
any mariner, after his discharge, shall have incurred 
expense at the port of discharge before shipping again, 
such expense shall be paid out of the two months’ 
wages aforesaid, and the balance only delivered to 
him. 


1 Session Acts 1854-55, p. 624. 


51 


124. The examination of the mariner by the consul 
or commercial agent, required by the fifteenth section 
of the act, shall be made in writing by the consul or com¬ 
mercial agent in the form of questions and answers; 
and when finished, it shall be read to said mariner dis¬ 
tinctly, so that he may understand it; and if the said 
mariner thereafter shall then and there wish to be 
discharged, he shall sign his name to said written ex¬ 
amination, if he writes, and if not, he shall make his 
mark in the presence of one witness at least, who shall 
attest the same. 

125. The consul or commercial agent shall certify 
that the examination is correctly written; that the 
mariner at the time was not intoxicated or under the 
influence of liquor, or incapacitated from doing busi¬ 
ness ; and that he was examined by him separate and 
apart from all officers of the vessel. 

The consul or commercial agent making said 
examination and certificate, shall transmit the same 
to the Secretary of the Treasury by the earliest oppor¬ 
tunity. 

126. If the consul or commercial agent shall be 
satisfied that it is for the interest and welfare of such 
mariner to be so discharged, and he does discharge 
him, he shall state why, in his opinion, it is for the in¬ 
terest and welfare of such mariner to be discharged. 

127. If the consul or commercial agent shall dis¬ 
charge such mariner without the three months’ wages 
required by the act of February twenty-eight, eighteen 
hundred and three, he shall state the circumstances 
which, in his judgment, will secure the United States 
from all liability to expense on account of such mariner. 

128. Every consul and commercial agent of the 


52 


United States shall keep a detailed list of all mariners 
discharged by them, respectively, specifying their 
names and the names of the vessels from which they 
were discharged, and the payments, if any, afterwards 
made on account of each, and shall make official returns 
of said lists half-yearly to the Treasury Department. 1 

129. In all cases of relief afforded, whether the sea¬ 
men who have received it be returned to the United 
States or not, an exact account must be furnished, in the 
half-yearly returns made by the consul, of the name of 
the individual, and of the ship, its master, owner, and the 
port to which she belonged, together with the sum ex¬ 
pended, with vouchers, where, from the nature of the 
case, they can be procured. 

130. Every consul and commercial agent of the 
United States shall make an official entry of every dis¬ 
charge which they may grant, respectively, on the list 
of the crew and shipping articles of the vessel from 
which such discharge shall be made, specifying the 
payment, if any, which has been required in each case; 
and if they shall have remitted the payment of the two 
months’ wages to which the mariner is entitled, they 
shall also certify on said shipping list afnd articles that 
they have allowed the remission, upon the joint appli¬ 
cation of the master and mariner therefor, after a sep¬ 
arate examination of the mariner, after due investiga¬ 
tion of all the circumstances, and after being satisfied 
that the discharge so allowed, without said payment, 
is for the interest and welfare of the mariner; and if 
they shall have remitted the payment of the one 
month’s wages to which the United States is entitled, 
they shall certify that they have allowed the remission 

1 Session Acts 1854-55, p.6'24 


53 


after a due investigation of all the circumstances, and 
after being satisfied that they are such as will, in their 
judgment, secure the United States from all liability to 
expense on account of such mariner; and a copy of all 
such entries and certificates shall be annually trans¬ 
mitted to the Treasury Department by the proper offi¬ 
cers of the customs in the several ports of the United 
States. 1 

131. It is provided also that if any consul or com¬ 
mercial agent of the United States upon discharging 
a mariner without requiring the payment of the one 
month’s wages to which the United States is entitled, 
shall neglect to certify in the manner required in such 
case by the preceding section of this act, he shall be 
accountable to the Treasury Department for the sum 
so remitted. And in any action brought by a mariner 
to recover the extra wages to which he is entitled 
under the act of February twenty-eight, eighteen hun¬ 
dred and three, the defence that the payment of such 
wages was duly remitted shall not be sustained with¬ 
out the production of the certificate in such case 
required by this act, or, when its non-production is 
accounted for by the production of a certified copy 
thereof, and the truth of the facts certified to, and the 
propriety of the remission, shall be still open to in¬ 
vestigation. 2 

132. If, upon the application of any mariner, it shall 
appear to the consul or commercial agent that he is 
entitled to his discharge under any act of Congress, or 
according to the general principles of the maritime 
law as recognised in the United States, he shall discharge 
such mariner, and shall require of the master the pay- 

l Session Acts 1854 - 55 , p. 624 9 Session Acts 1854-’55, p. 625. 


54 


ment of three months’ wages, as provided in the act of 
February twenty-eight, eighteen hundred and three, 
and shall not remit the same, or any part thereof, ex¬ 
cept in the cases mentioned in the proviso of the ninth 
clause of the first section of the act of July twentieth, 
eighteen hundred and forty, to the following effect: “If 
the consul or other commercial agent shall be satisfied 
the contract has expired, or the voyage been protracted 
by circumstances beyond the control of the master and 
without any design on his part to violate the articles 
of shipment, then he may, if he deems it just, discharge 
the mariner without exacting the three months’ addi¬ 
tional pay.” 

133. Consuls are not to discharge a seaman for slight 
or venial offences, and certainly not for a single offence 
unless of a very aggravated character. If the charge 
be negligence, drunkenness, disobedience, or dishon¬ 
esty, the question should be, whether the misconduct 
was of that degree as to amount to an habitual inatten¬ 
tion to or unfitness for duty, having always in view the 
particular station of the party and the nature of his 
duty. If the allegation be that the seaman is a danger¬ 
ous person, from a spirit of insubordination, or hostil¬ 
ity to the master, it has been held that the master must 
show that the danger is such as would affect the mind 
of a man of ordinary firmness. But even in cases of 
aggravated offences, or of a continued course of con¬ 
duct which would justify the discharge of a seaman, if 
he repents and offers amends, the principle which is 
always operating in his favor against all kinds of for¬ 
feiture, with very rare exceptions, intervenes to restore 
him to his rights, and he is ordinarily entitled to be 
received again on board. To deprive a mariner of the 


55 


• 

benefit of this rule, it should appear that the miscon¬ 
duct amounts to a radical disqualification, as dishonesty 
and habitual drunkenness in a steward; or that the 
party is really dangerous to the peace and safety of the 
ship. These principles receive additional force from 
the general policy of the laws of the United States, 
which discountenance the discharge of seamen in 
foreign ports; the various enactments in respect to 
destitute seamen sufficiently show the parental solici¬ 
tude of the government for the preservation and pro¬ 
tection of the seamen of the country. 1 

134. Where piracy, mutiny, or any other offence 
against the laws of the United States, shall have been 
committed on board of any vessel of the United States 
coming into the consular district, it is the duty of the 
consul, after taking the depositions necessary to estab¬ 
lish the facts, to apply to the local authorities for means 
of securing the offenders while they remain in port, 
and to provide the means of sending them, without 
delay, to the United States for trial; and in all such 
cases, where the vessel on board of which the offence 
was committed is not bound to the United States, the 
consul is directed to procure two of the principal wit* 
nesses to be sent home with the person accused; and 
he is, at the same time, to transmit certified copies of 
all the depositions he has taken in relation to the 
offence, an exact detail of all its circumstances, and 
such information as may be necessary to secure the 
conviction of the offenders, to the United States attor¬ 
ney of the district to which the prisoners are sent, and 
also a copy of the same to this Department. The con¬ 
sul will be especially careful to specify particularly 

1 Curtis’s Merchant Seamen, 149, 150. Ware, 65 et seq. 


% 


56 


the names and residences of all the witnesses whose 
testimony may be necessary at the trial; and he will, 
if possible, in all cases send the offenders to the port 
in the United States from which the vessel cleared. 

135. Great care must be taken in all cases of accusa¬ 
tions against mariners by their officers, not to confound 
a simple and casual disobedience of orders with the 
crime of mutiny, which has in some cases been made 
in order to justify a discharge of seamen in a foreign 
port contrary to the directions of the act. In this, as 
in all other cases, the consuls are particularly instructed, 
while on the one hand they support the masters of ves¬ 
sels in the exercise of their proper authority, on the 
other to discourage and prevent all oppression of sea¬ 
men by their officers. 

136. One essential object of the consular appoint¬ 
ment is the protection of this class of our fellow-citi¬ 
zens, whose habits of life require a kind guardianship 
of their persons and interests in foreign countries, but 
at the same time a strict vigilance over their conduct. 
The law makes it the duty of American consuls to 
provide, at the public expense, for all mariners and 
seamen of the United States who may be found destitute 
within their respective districts. It is no bar to their 
relief that they have been left abandoned by the wreck 
of their vessel, or otherwise, on a foreign shore. They 
are still “mariners and seamen of the United States, 7 ’ and 
the circumstance of their destitution entitles them to 
all the benefits and protection provided by the fourth 
section of the act above mentioned. They are within 
the words of the act, and they are within all the rea¬ 
sons of humanity and policy which dictated its pro¬ 
visions. 1 

1 Opinion of the Attorney General, May 12, 1853. 


57 


137. The principles which have heretofore been 
established in regard to the protection of seamen, are 
plain and well settled. The rule laid down by the 
distinguished person who first held the office of Secre¬ 
tary of State, Mr. Jefferson, was, “ that the vessel being 
American, shall be evidence that the seamen on board 
are such;” and, fifty years afterwards, it was restated 
with no less precision by one of the most eminent of 
American statesman, u that in every regularly docu¬ 
mented merchant vessel, the crew who navigate it will 
find their protection in the flag which is over them.” 1 

138. It having been found that the power vested 
in consuls by the fourth section of the act of twenty- 
eighth February, eighteen hundred and three, has, in 
many instances, been so injudiciously exercised, that a 
provision for the relief of mariners and seamen of the 
United States who may be found destitute within their 
districts, has often become a premium for desertion, 
consuls are hereby specially enjoined, in the case of 
every deserter who may apply for the benefits of this 
act, to ascertain clearly and satisfactorily, that he is 
justly entitled to the same, and that his leaving the ship 
was caused by improper or cruel treatment. 

139. Cases undoubtedly occur where its benefits are 
imperatively invoked by such mariner, driven from his 
ship by intolerable treatment—treatment proceeding, 
sometimes from reckless cruelty, and sometimes, as is 
believed, from design to make the seaman leave his 
vessel when his services have ceased to be of value 
for the completion of the cruise. But in meeting the 
requisition of such unfortunate seamen, consuls are 

1 Quoted from Mr. Webster’s letter to Lord Ashburton on the subject of im¬ 
pressment, and incorporated into an instruction to Consul Bromberg, Septem¬ 
ber 1, 1853. 


8 


cautioned so to use the funds appropriated by Congress 
as not to encourage sailors to break their shipping en¬ 
gagements, from a confidence that in so doing they do 
not forfeit their claim to relief and protection at the 
hands of our consuls. 

140. The great increase in the amount annually ex¬ 
pended for the relief and protection of destitute Ameri¬ 
can seamen in foreign countries calls upon this Depart¬ 
ment to adopt all proper measures, compatible with the 
relief and protection of that meritorious class of our 
citizens, for the reduction of this expenditure. In such 
regulations as may be adopted for this purpose, full 
confidence is placed in the efficient co-operation of the 
consuls of the United States, to whose administration, 
under the instructions of this Department, is entrusted 
the funds appropriated for the relief and protection of 
seamen. 1 

141. Among the causes which appear to have pro¬ 
duced this increased expenditure is that of the deten¬ 
tion of seamen at some consulates for long periods of 
time. There can be but two reasons for this practice: 
first, a deficiency of American or other vessels bound 
to the United States, by which they might be sent 
home; or, second, such a state of infirm health of the 
seamen as would render it improper to send them on 
the voyage. In order to guard against an improper ex¬ 
penditure from this cause, the Fifth Auditor has adopted 
a rule to suspend, in the adjustment of consular accounts, 
all charges for relief afforded to seamen who have been 
for more than three months chargeable to the United 
States, unless the accounts are accompanied by satis¬ 
factory evidence, first, that the detention was caused 


1 ii Statutes at Large, p. 204. 


by a want of vessels in which they might have been 
shipped to the United States; or, second, that the health 
of the seamen was in such a state that it would endanger 
their lives to send them on the homeward voyage. 
The evidence in the latter case is to be by the oath to 
the fact of the attending physician 

142. Approving of this rule, the attention of con¬ 
suls is called to it, and a strict compliance with it is 
earnestly enjoined in all cases in which it may be 
applicable. This will be requisite to ensure the pay¬ 
ment of consular drafts on this Department. 

143. In places where, from the infrequent departure 
of vessels bound to the United States, opportunities of 
sending seamen home seldom occur, and where em¬ 
ployment on board of American vessels cannot be 
obtained, it may be proper for the consul, in the exer¬ 
cise of a sound discretion, to embrace opportunities of 
shipping them to an intermediate port where they 
may be likely to find such employment or a passage 
to the United States. The consul will, in this case, 
make a specific agreement with the master of the 
vessel, at the most reasonable rate, for their passage; 
giving to him a draft on this Department for the amount, 
upon which it shall be expressed that its payment shall 
be upon the sole condition that there shall be endorsed 
upon it a certificate of the consul at the port to which 
the vessel may be bound, that the seamen named have 
arrived at his consulate. In the exercise of this dis¬ 
cretion, the consul will take into consideration the 
relative cost of keeping the seamen where they are, 
and at the port to which they can be sent, together 
with the expense of their passage to it, and the 
probability of their obtaining employment there, or a 


60 


passage home, and adopt that course which may appear 
the most economical for the United States, as well as 
conducive to the relief of the seamen. 

144. Consuls will transmit, with all their future quar¬ 
terly accounts, a list of the seamen then chargeable; 
also, the number of vessels, American and foreign, with 
the amount of their tonnage, which may have sailed 
for the United States subsequent to the date of their 
previous account, and a statement of the seamen sent 
home by them. 

145. The particular observance of these regulations 
is earnestly enjoined upon consuls, as well as the 
adoption of such other measures as their experience 
may suggest for the faithful and economical adminis¬ 
tration of the funds committed to them. 

146. To obviate the excuse sometimes made for 
retaining seamen at the consulates, viz: the want of 
vessels homeward bound in which to send them, (as the 
law fixes the number of seamen which vessels of the 
United States shall be required to bring and the price 
to be paid for their passages,) 1 consuls are instructed, 
when an American vessel has received two seamen for 
every one hundred tons burthen at the price fixed by 
law, to bargain with the master of such vessel for the 
passage to the United States of an additional number 
at a reasonable compensation above the ten dollars fixed 
by law, to be paid on his certificate in the usual way at 
the Treasury; and also with masters of foreign vessels, 
at reasonable rates, when opportunities by American 
vessels do not offer. In such cases, the reasons for the 
increased compensation bargained for should be stated 
in the consul’s certificate. 


1 ii Statutes at Large, p. 204. 


(31 


147. The rule has long existed in the accounting 
offices at Washington, that the receipts for clothing, 
necessaries, and supplies, given by sailors making their 
marks, or otherwise, should be witnessed. In settling 
the accounts of consuls, it appears that the execution 
of such receipts is, in many instances, witnessed by a 
member of the firm furnishing the articles. This pro¬ 
cedure is a violation of the spirit of the rule—a rule 
established alike to guard against the defrauding of 
our destitute seamen, and for the proper husbanding of 
the fund appropriated to their relief. 

148. Consuls are enjoined and instructed, in every 
case, hereafter, to require that the articles thus furnished 
to mariners be delivered in their presence, or in the 
presence of a disinterested witness known to the con¬ 
sul. In the settlement of the accounts of consuls at 
the Treasury, every violation of this instruction will be 
reported to the Department of State. 

149. It is proper that consuls should be informed that 
the following vouchers will in all cases be required 
of them: 

150. For the board or subsistence of seamen in 
health, or sick in the hospitals, bills, with the neces¬ 
sary receipts to the consuls for the amount, (in which 
bills the names of the seamen, the time, with dates of 
commencement and termination, and rate per day or 
week, should be stated,) must be taken in every 
case, and transmitted with the accounts to the Fifth 
Auditor of the Treasury. For medical attendance the 
same rule should be observed. 

151. For clothing, (which should be of the cheapest 
kind sailors are accustomed to wear,) bills of parcels, 
specifying the different articles and price of each, with 


62 


receipts for payment, should not only be produced, but 
the receipts of the seamen themselves for the articles 
supplied should accompany the consular accounts. 
The law of 28th February, 1803, makes no difference 
in its provisions for masters and mates of vessels and 
common seamen, and consuls will be careful to make 
none. When charges for supplies for officers are at a 
higher rate than those for common seamen, a deduction 
of the excess will in every case be made. 

152. Loss in exchange on the sale of drafts on the 
Secretary of State will be allowed on transmitting the 
certificates of the bankers or brokers to whom sale may 
be made respectively, showing the loss sustained, or 
those of two or more merchants, bankers, or brokers, 
showing the rate of exchange between the consul’s 
port and the United States at the respective dates of 
the drafts. Consuls are instructed to send quarterly 
reports of the rates of exchange in the principal places 
in their respective consulates on the principal commer¬ 
cial marts of the world, and particularly New York, 
Boston, Philadelphia, Baltimore, Charleston, New 
Orleans, and San Francisco. 

153. For the adjustment of charges for the relief 
of destitute American seamen, in addition to the 
vouchers above specified, a return should be made not 
only of the name of the individual relieved, but also 
of the ship from which he was discharged, her master, 
owner, and the port to which she belonged. 

154. Annexed to these instructions is a form (No. 7) 
long in use at some of the consulates, by which, in 
connexion with the name of each seaman, may be 
shown the name of his ship, her master, owner, port, 
date of discharge, amount of extra wages received 


and also amount disbursed on his account, and the 
date of his leaving the consulate. If any seaman 
happens at a United States consulate not from dis¬ 
charge from a vessel, but from shipwreck, or otherwise, 
the same must be stated accordingly, with the time he 
arrived at the consulate, so that the return will show 
how, and when, each seaman relieved happened there. 
And if no extra wages are received, the reasons why 
such wages have not been received should appear from 
the return, or other accompanying papers. Consuls 
are instructed to transmit a return similar to No. 7 
with every quarterly, half-yearly, or yearly account. 

155. When American seamen are discharged in any 
port from sickness or any other cause, the three months’ 
extra wages should invariablv be exacted under the law 
before referred to, unless very strong reasons should 
prompt to the exercise of the discretion given to con¬ 
suls by the acts of 20th July, 1840, and 1st March, 1855, 
and those reasons should be communicated. The three 
months’ extra wages are to be credited in consular ac¬ 
counts, and the two-thirds thereof are not to be paid to 
seamen until they shall have engaged on board some 
vessel to return to the United States; and then only 
when, as stated in Sec. 119, no disbursements shall have 
been made on their account. Expenses incurred for 
them are first to be paid, and the balance only, if any, 
to be returned to them. On payment of the two 
months’ extra wages to seamen, consuls will take and 
forward receipts with their accounts to this office. 

156. Consuls will be careful to send all American 
seamen found destitute within their districts to the 
United States, giving to the master of the vessel on 
board of which they are placed, a certificate setting 


G4 


forth their names, and the amount to be paid for their 
passage, which amount will be promptly remitted upon 
the receipt at the Treasury Department of the said 
certificate, bearing an endorsement of the collector of 
the customs that the seamen therein mentioned have 
arrived in said vessel within his district. Charges paid 
by consuls will not be allowed without satisfactory ex¬ 
planation and proof of the delivery of the seamen at 
the port to which such passages were paid. 

157. When a greater number of seamen is sent in a 
vessel than she is by her tonnage required to take, or 
for whose passages a greater amount is allowed than is 
prescribed by law, a certificate must be transmitted 
that there were no other American vessels then in port 
bound for the United States. 

158. The 4th section of the act of 1803 was designed 
to supply the 7th section of the act of 1792, ch. 24, to 
provide a compensation to masters who should be re¬ 
quired to perform the duties it imposes, which the act 
of 1792 did not afford, and to fortify the sanction by 
which it was to be enforced by an increase of the 
penalty demanded for its violation. The only other 
act of Congress relating to the subject, is that of 1811, 
ch. 95, which provides for the allowance by the Comp¬ 
troller in certain cases of additional compensation. 

159. The language of the act of 1803, borrowed 
from that of 1792, is, “that all masters and command¬ 
ers of vessels belonging to citizens of the United 
States, and bound to some port of the same , are required 
and enjoined to take such mariners or seamen on board 
of their ships or vessels, at the request of the said con¬ 
suls, &c., and to transport them to the port of the 
United States to which the ships or vessels may be 


65 


bound , &c.” The act does not impose the duty of 
transportation upon every American vessel found in a 
foreign port. For obvious reasons, such a requirement 
might under many circumstances operate oppressively 
upon masters and owners. But the provision is limited 
in its application to such vessels found in a foreign 
port as shall belong to citizens of the United States, 
and as shall be bound to some 'port thereof ; and it does 
not apply to vessels bound to another foreign port, 
and thence to some port of the United States; such a 
construction would apply the provisions of the act to 
every vessel belonging to citizens of the United States, 
wherever bound , if destined ultimately to return home. 

160. The act of 1803 does not require that masters 
of vessels should transport destitute seamen, except in 
cases in which such vessels are bound direct to some 
port in the United States. 1 

161. The consul or commercial agent is the exclu¬ 
sive judge in such cases of the ship in which he will 
send destitute American seamen to the United States 
under the conditions named above. 

162. This rule applies to all mariners so situated who 
shipped in any merchant vessel in the United States 
for service, whether in fact foreigners or natives. 2 

163. The general rule 3 in regard to the wages of 
seamen is, that the wages of seamen on board of 
merchant ships are payable out of the earnings for 
freight; and if no freight is earned, by reason of the 
perils of the sea or capture by the enemy, and not by 
the fault or neglect of the master or owner, no wages 
are due. 

} Opinion of the Attorney General, July 10, 1843. 2 iii Sumner, 116 

:i Opinion of the Attorney General, July 24, 1854. 

9 


66 


164. The maxim that “freight is the mother of 
wages” is a formula which, though it has obtained 
general currency, is to be carefully scrutinized in its 
application. 1 

165. A distinction is to be made between those 
accidents by which the voyage is interrupted and the 
freight lost, without the fault of the owner or master, 
and other causes arising from the acts of the owner or 
master. 2 

166. If the voyage or freight be lost by the negli¬ 
gence, fraud, or misconduct of the owner or master, or 
voluntarily abandoned by them; if the owner have con¬ 
tracted for freight upon terms or contingencies differ¬ 
ing from the general rules of the maritime law; of, if 
he have chartered his ship to take a freight at a foreign 
port, and none is to be earned on the outward voy¬ 
age,—in all these cases the mariner is entitled to wages, 
notwithstanding no freight has accrued. 3 

167. Where freight is, or might be , earned, wages 
are due for the full period of employment in the ship’s 
service, whether the freight is actually received by the 
owner or not. 4 

168. No private contract between the owner and 
the shipper, with regard to freight, can affect the right 
to wages. 

169. If the vessel and cargo are lost on the outward 
voyage, before any freight is earned, and no part of 
either are saved by the crew, the wages of the seamen 
are also lost, and the original contract therefor is an¬ 
nulled, but the advance wages are not in such case to 
be returned. 5 

1 See Curtis’ Rights and Duties of Merchant Seamen, page 27.1 et seq. 

2 Statutes at Large, p. 396. 3 Curtis, p. 272, also note. 

4 iii Sumner’s R , 5J, 286; Curtis, 272. 5 Curtis, 274 


67 


170. If the vessel is lost on the homeward voyage, 
and freight has been, or might have been, by the gen¬ 
eral principles of law, earned to an outward port, the 
wages for the outward voyage to that port are deemed 
to have been earned. 1 

171. No abatement is to be made from the wages in 
case of the freight being partially lost or diminished 
by maritime accidents or perils. 

172. If freight is earned, whether it be large or 
small, the whole wages, which are deemed to have 
been earned, are to be paid without deduction. 2 

173. When the vessel is lost between intermediate 
ports, the wages are to be calculated up to the last 
port of the delivery or receipt of cargo, and for half 
the time that the ship lies there. 3 

174. Where a voyage is divided by various ports of 
delivery, a claim for proportional wages attaches at 
each of such ports of delivery upon safe arrival, and 
that all attempts to evade or invade that title, by re¬ 
nunciations obtained from the mariners without any 
consideration, by collateral bonds, or by contracts 
inserted in the body of the shipping articles, not usual, 
not fully explained to these illiterate and inexperienced 
persons, are ineffectual and void. 

175. The act of 1840 does not change the general 
principle of the maritime law, that seamen’s wages are 
not due for a voyage not performed, when no freight 
has been earned, when the voyage has been broken up 
by a disaster at sea, and where no fault is attributed 
to the master or owners. 

176. Nor did it put it into the power of the crew, 
when the vessel was obliged by a leak, caused by the 

1 Curtis, 276. 2 iii Sumner’s R., 286. 3 Curtis, 278, and note 


68 


straining of the vessel in heavy rolling seas, to put 
into the nearest port for safety, and so disabled from 
continuing the voyage until repaired, to complain of 
the master for such an event, and cause the vessel to be 
sold, and thereby acquire profit to themselves by the 
payment of wages not earned, and the further advance 
of pay for three months to come. 

177. The act of February 28, 1803, applies only to 
the voluntary sale by the master in a foreign port, or by 
the owners, and not to a case where a sale is rendered 
necessary by shipwreck. 

178. In its 12th, 13th, and 14th articles, the act of 
July 20, 1840, does not apply to a vessel not about to sail 
from the port in an unsuitable condition. It applies 
to a case where a vessel, having arrived at a foreign 
port, is about to sail thence on another or continuous 
voyage, and the crew apprehend that their lives will 
be endangered because of her unsuitable condition to 
go to sea, and make complaint to the consul of such 
intention to go to sea in an improper and unsuitable 
condition, “because she is leaky, or insufficiently sup¬ 
plied with sails, rigging, anchors, or any other equip¬ 
ment ; or that the crew is insufficient to man her; or 
that her provisions, stores, and supplies are not, or 
have not been during the voyage, sufficient and whole¬ 
some. Upon complaint in any of these or like cases, 
the consul shall appoint fit persons “to examine into 
the causes of complaint,” as also into the condition of 
the vessel, and whatever is on board, and to receive 
any other proof. 

179. The examiners are to state, whether, in their 
opinion, “the vessel was sent to sea unsuitably provi¬ 
ded in any important or essential particular by neglect 


69 


or design.” If the inspectors find any complaint u well- 
founded,” they are to state what ought to be done 
u to put the vessel in order for the continuance of her 
voyage.” They have no authority to report a sale: 
the crew have no authority to ask a sale. This act 
gives no authority to the consul to order a sale of the 
vessel. 

180. By the 14th article of this act, if the examin¬ 
ers report that “the vessel was sent to sea unsuitably 
provided in any important or essential particular, by 
neglect or design,” and the consul approves of such 
finding, “he shall discharge such of the crew as require 
it.” In such case of neglect or design, the crew dis¬ 
charged upon such ground, are each entitled to three 
months’ pay in addition to his wages up to the time of 
the discharge. 

181. But if the deficiency complained of by the 
crew is reported by the examiners to have been “the 
result of mistake or accident, and could not in the 
exercise of ordinary care have been known and provi¬ 
ded against before the sailing of the vessel, and the 
master shall in a reasonable time remove or remedy the 
causes of complaint, then the crew shall remain and 
discharge their duty.” 

182. But if the master does not, in a reasonable 
time, remove or remedy the cause of complaint, then 
the crew shall, upon request, be discharged: and in 
this latter case, they shall receive, each, “ one month’s 
wages in addition to the pay up to the time of the 
discharge. 

183. This act has not deprived owners and masters 
of vessels of the right to consult their own interests 
in selling or not selling; it has not subjected vessels to 


70 


the orders of sale by consuls, because vessels have, in 
their voyages, sprung a leak and put into the nearest 
port for safety. 

184. It is intended to redress the first complaints of 
the crews of American vessels in foreign ports against 
being compelled to risk their lives in vessels about to go 
to sea in unsuitable and unsafe conditions: to hear and 
redress the just complaints of mariners against being ex¬ 
posed to peril by the neglect or design of masters and 
owners, or by their mistakes or accidental omissions. 

185. It is made the duty of consuls and commercial 
agents to reclaim deserters, and discountenance insub¬ 
ordination by every means in their power; and when 
the local authorities can be usefully employed for that 
purpose, to lend their aid and use their exertions to 
that end in the most effectual manner. 1 

186. Desertion has been defined to be a quitting of 
the vessel with the intention of abandoning her alto¬ 
gether and not returning. A mere leaving of the 
vessel without permission, is not desertion. 2 

187. In countries with which the United States have 
stipulations by treaty or convention to this effect, or 
where it is permitted by the local authorities, consuls 
may apprehend deserters as fugitives from justice, and 
imprison them until required by their commander. 

188. Any deliberate disobedience, on the part of a 
mariner, of any justifiable order of his commander in 
relation to the business of his ship, without regard to 
the tone or manner of the order, is an act of insubor¬ 
dination, subject to immediate punishment by the 
commander, and to the consular jurisdiction intended 
by the act of eighteen hundred and forty. 3 

1 Statutes at Large. 2 Ware’s R., 309; Sumner’s R., 373. 

Htnslaw, 76, and authorities ther cited. 


71 


189. For the purpose of “discountenancing insubor. 
dination” when brought within his official notice, the 
consul may engage, if he find it absolutely necessary, 
the assistance of the local police to secure the offender, 
and cause him to be manacled and put on board of a 
ship to be sent home, or to be incarcerated, by permis¬ 
sion, within the consular district. 1 

190. The consul has no right, however, to exercise 
any authority on board of a vessel, if the officer in 
command is obeyed by his crew, or by so many of them 
as to be able to navigate the vessel. 

191. If American seamen arrive in an American ves¬ 
sel at any port within the jurisdiction of a United 
States consul, and such seamen refuse to do duty, and 
the vessel is bound to the United States, they should 
be confined on shipboard by the captain, and not be 
discharged by the consul, unless, in the exercise of his 
best discretion and judgment, the case is one that im¬ 
peratively requires the adoption of such a course; in 
which event, the consul should make it clearly evident 
in his report to the department. If the captain is able 
to navigate his ship, and proceed to the United States 
with them all on board, he should do so; but if it should 
be in danger by having them all on board, he should 
deliver so many to the consul, to be sent home for trial, 
as will relieve him from any reasonable fear of a 
revolt among the crew or the capure of the vessel. 

192. If the vessel is outward bound, and the crew 
mutiny, the mutineers should be delivered to the con¬ 
sul to be sent home; and, until such an opportunity 
offers, he should take the best care of them he can with 
the aid of the local authority. 


1 Heuehaw, 82. 


72 


193. In all cases, the lawful authority of the captain 
or master of a vessel is to be maintained, and if neces¬ 
sary, by the aid of the consul. 

194. iVny resort, however, to harsh measures should 
always be with great caution, as it is only justified by 
the strongest necessity, and may subject the consul to 
prosecution in the United States. 1 

195. It is provided by the act of July twentieth, 
eighteen hundred and forty, that if the first officer, or 
any officer, and a majority of the crew of any vessel 
shall make complaint in writing that she is in an un¬ 
suitable condition to go sea, because she is leaky, or 
insufficiently supplied with sails, rigging, anchors, or 
any other equipment, or that the crew is insufficient to 
man her, or that her provisions, stores, and supplies 
are not, or have not been, during the voyage, sufficient 
and wholesome, thereupon, in any of these or like cases, 
the consul or commercial agent who may discharge 
any duties of a consul shall appoint two disinterested, 
competent, practical men, acquainted with maritime 
affairs, to examine into the causes of complaint, who 
shall in their report state what defects and deficiencies, 
if any, they find to be well founded, as well as what, 
in their judgment, ought to be done to put the vessel 
in order for the continuance of her voyage. 

The inspectors so appointed shall have full power to 
examine the vessel and whatever is aboard of her, as 
far as is pertinent to their inquiry, and also to hear and 
receive any other proofs which the ends of justice may 
require; and if, upon a view of the whole proceedings, 
the consul, or other commercial agent, shall be satisfied 
therewith, he may appove the whole or any part of the 

1 Ware’s R., 53. 


73 


report, and shall certify such approval, and if he dis¬ 
sents, shall also certify his reasons for so dissenting. 

196. The inspectors in their report shall also state 
whether, in their opinion, the vessel was sent to sea 
unsuitably provided in any important or essential par¬ 
ticular, by neglect or design, or through mistake or 
accident; and in case it was by neglect or design, and 
the consul or other commercial agent approves of such 
finding, he shall discharge such of the crew as require 
it, each of whom shall be entitled to three months’ pay 
in addition to his wages to the time of discharge; but 
if in the opinion of the inspectors the defects or defi¬ 
ciencies found to exist have been the result of mistake 
or accident, and could not, in the exercise of ordinary 
care, have been known and provided against before the 
sailing of the vessel, and the master shall, in a l*eason- 
able time, remove or remedy the causes of complaint, 
then the crew shall remain and discharge their duty; 
otherwise, they shall, upon their request, be discharged, 
and receive each one month’s wages in addition to the 
pay up to the time of discharge. 

The master shall pay all such reasonable charges in 
the premises as shall be officially certified to him under 
the hand of the consul or other commercial agent; but 
in case the inspectors report that the complaint is with¬ 
out any good and sufficient cause, the master may re¬ 
tain from the wages of the complainants, in proportion 
to the pay of each, the amount of such charges, with 
such reasonable damages for detention on that account 
as the consul or other commercial agent directing the 
inquiry may officially certify 

197. It is also provided by the same act that the 
crew of any vessel shall have the fullest liberty to lay 

10 


74 


their complaints before the consul or commercial agent 
in any foreign port, and shall in no respect be restrained 
or hindered therein by the master or any officer, unless 
some sufficient and valid objection exist against their 
landing; in which case, if any mariner desire to see 
the consul or commercial agent, it shall be the duty of 
the master to acquaint him with it forthwith, stating 
the reason why the mariner is not permitted to land, 
and that he is desired to come on board; whereupon it 
shall be the duty of such consul or commercial agent 
to repair on board and inquire into the causes of the 
complaint, and proceed thereon as this act directs. 

198. In all cases where deserters are apprehended, 
the consul or commercial agent shall inquire into the 
facts; and, if satisfied that the desertion was caused by 
unusual or cruel treatment, the mariner shall be dis¬ 
charged, and receive, in addition to his wages to the 
time of the discharge, three months’ pay; and the offi¬ 
cer discharging him shall enter upon the crew list and 
shipping articles the cause of discharge, and the par¬ 
ticulars in which the cruelty or unusual treatment con¬ 
sisted, and subscribe his name thereto officially. 

199. It is further provided, that if any consul or 
commercial agent shall neglect or omit to perform, 
seasonably, the duties hereby imposed upon him, or 
shall be guilty of any malversation or abuse of power, 
he shall be liable to any injured person for all damage 
occasioned thereby; and for all malversation and cor¬ 
rupt conduct in office, he shall be liable to indictment, 
and, on conviction by any court .of competent jurisdic¬ 
tion, shall be fined not less than one nor more than 
ten thousand dollars, and be imprisoned not less than 
one nor more than five years. 


75 


CHAPTER X. 

OF THE ACCOUNTS OF CONSULS. 

200. All accounts transmitted to the Department of 
State, or enclosed to the Fifth Auditor, must be accom¬ 
panied by a separate communication, the subject of 
which must be confined exclusively to such accounts. 

201. Consuls and commercial agents, acting under 
the provisions of the act approved the first of March, 
1855, are required to keep, with their other official 
books and records, a fee book, properly prepared, and 
well and substantially bound. This book, in addition 
to the usual faint lines, is to be ruled in columns, for 
date, number, name of the vessel and captain, or other 
party or parties who may pay fees, the nature of the 
service rendered, and the amount of the fee therefor, 
as in Form No. 8. 

202. For every fee received, or for the aggregate 
amount received at any one time from the same party, 
a separate and distinct bill shall be rendered, and re¬ 
ceipted when paid ; which bill shall be duly entered in 
the fee book, specifying in the respective columns the 
date, name, nature of the service rendered, and amount 
of the fee; and to each entry thus made, on the corre¬ 
sponding faint line, the regular number shall be placed, 
commencing each calendar year with number one, and 
continuing the same in regular numerical order until 

he close of the year, and to each bill so rendered and 
paid, the corresponding number in the book shall 
be affixed. A full and perfect transcript of this fee 
book shall be transmitted quarterly to the Treasury 
Department, duly certified under the seal of the con¬ 
sulate or commercial agency. 


76 


203. Consuls and commercial agents are directed to 
have the printed card, furnished by the Department 
containing the list of fees, with the amount of each fee 
required by law or otherwise, posted up and placed in 
a prominent and accessible part of their offices, where 
it can be readily seen and referred to by all parties 
coming to, or having business with, the consulate or 
commercial agency. 

204. Consuls, in all cases, are to render a bill for any 
and every fee received by them, without any regard 
to the amount, and to deliver the said bill, prepared 
and receipted as above, to the party or parties for 
whom any official act is performed, whether the said 
party demands said bill and receipt or not; and any 
deviation from this, or any other part of the present 
instructions or rules, will subject the offending party to 
be reported to the President. 

Whenever a consul transmits his accounts for the 
first time to the Department, evidence must be pro¬ 
duced showing the time of his entering upon the duties 
of his office. 

205. Whenever a change takes place in a consulate, 
a joint certificate, when it can be done, of the outgoing 
and incoming officers should be filed in the Treasury 
Department, to determine when the salary of the one 
ceased and that of the other commenced. 

206. Evidence must be filed in the Treasury Depart¬ 
ment that the consul has, or has not, been absent from 
his district, that if absent a.t any time for more than 
ten days, the salary may be witheld during the period 
of his absence, as required by the 8th section of the 
act of 1st March, 1855. 1 

207. As many of the United States consuls are sta- 

1 Session Acts 1854-5, page 263 


77 


tioned at places so remote from the United States, that 
much time must elapse in making remittances to and 
from the Treasury Department, and much risk be in¬ 
curred, as well as loss in exchange, consuls and commer¬ 
cial agents are instructed to retain, (of the fees which 
they are required to charge for certain services, and 
account for at the expiration of every three months, 
and hold the proceeds subject to its drafts,) such moneys 
as they may receive for the services specified in the 
act of 1st March, and apply the amount thus received 
during the quarter, at the end of the same quarter, to¬ 
wards the payment of their salaries, if less than the full 
amount thereof; if equal to their salaries respectively, 
then to the extinguishment of the same. Should there 
be a surplus, the excess is to be held subject to the 
draft or order of the Secretary of the Treasury. 

208. When the amount received by any consul or 
commercial agent on account of fees during the quar¬ 
ter, shall be less than his salary for such quarter, he 
may draw on the Secretary of the Treasury for the dif¬ 
ference, at fifteen days 1 sight. It must be stated on the 
face of the draft that it is for the balance of salary, 
designating the quarter in which the deficiency occur¬ 
red for which it is drawn. The account of the receipts 
of the consul or commercial agent during the same 
quarter must accompany the draft, and they must be 
presented together, so that they may be settled at the 
same time by the accounting officers, and the draft duly 
paid upon the settled account. All consuls and com¬ 
mercial agents are explicitly instructed that their drafts 
on account of their salaries cannot be honored unless 
drawn in the manner stated in these instructions, and 
accompanied with the official statements herein pointed 
out. 


78 


209. Compensation, under the act, commences only 
when the appointee shall reach his post and enter on 
his official duties. If he enters upon his duties in a 
quarter partly expired, his first account should be made 
up to the close of such quarter; each quarter ending 
by law on the 31st March, 30th June, 30th September, 
and 31st December, respectively. Afterwards, the 
accounts must be rendered quarterly, until the termi¬ 
nation of the service. The salary ceases on the day 
when a successor enters on the duties of the office. 
The predecessor, if he is in the place, and successor 
should designate the day by a joint certificate. 

210. The 8th section of the act prohibits any absence 
from the district of a consul or commercial agent for 
a longer period than ten days, without leave of the 
President; and the salary ceases during * an absence 
exceeding ten days, whether leave is givTM or not. 1 

211. Each account and draft must, therefore, be ac¬ 
companied with a certificate stating the fact in.regard 
to absence as it exists. A form (No. 9) according to 
which the accounts of consuls and commercial agents 
for salaries should be stated, and also forms (No. 10, 
No. 11, and No. 12) of the three descriptions of official 
certificates required, are annexed to these Instructions. 

212. Consuls are especially instructed to observe 
carefully these forms and instructions in regard to their 
accounts, in order that all possible facilities may be 
afforded for the adjustment of the same, and the pay¬ 
ment of the salaries under the act. 

213. Drafts are to be drawn on the Secretary of the 
Treasury on account of quarterly salaries, and at fifteen 
days’ sight, acceptance waived , in order to give suffi- 


1 Session Acts 1854-5, p. 2G3. 


79 


cient time to the accounting officers to adjust the ac¬ 
counts before the day of payment. When the accounts 
and the necessary certificates are in order, the fifteen 
days will probably not be required. 

214. As the appropriations for salaries of consuls, 
for the relief and protection of American seamen, and 
for expenses authorized by this Department, are dis¬ 
tinct, the consuls will render one account for salary, 
one for the relief of seamen, and one for their disburse¬ 
ments for stationery, blank books, &c., and for postages, 
and make drafts for their reimbursement separate, also, 
stating in each the account for which it may be made. 
The drafts for salary must be made quarterly, corre¬ 
sponding to the quarters of the fiscal year; drafts for a 
fraction of a quarter are not to be made, except for such 
fraction as may intervene between the commencement 
of their salary and the end of the current quarter of 
the fiscal year, and for that between the commencement 
of a quarter and the termination of their office. Ac¬ 
counts for the relief and protection of American sea¬ 
men, accompanied with sufficient vouchers, should be 
addressed direct to the Fifth Auditor of the Treasury. 

215. The appropriation for expenses allowed to con¬ 
suls is as follows: “For the purchase of blank books, 
stationery, arms of the United States, presses, flags, and 
payment of postages.” 

216. In order to prevent the occurrence of improper 
items in the accounts for office expenses of the several 
consulates and commercial agencies of the United States 
in foreign countries, consuls and commercial agents 
will hereafter be particular to bear in mind that charges 
made for any other objects than the following, are 
deemed inadmissible, and will not be allowed, viz: 


80 


1. For a letter book, into which are to be copied all 
official notes and letters other than those addressed to 
the Department of State. 

2. A record book, into which are to be copied all 
letters written by the consul or commercial agent to 
the Department of State. 

3. A record book, into which are to be copied the 
semi-annual returns of the arrival and departure of 
American vessels, their inward and outward cargoes, 
tonnage, &c., and, also, statements of fees, each accord¬ 
ing to the forms prescribed in the printed Instructions. 

4. A record book for the entry of protests and all 
other official consular acts. 

5. A fee book for entering all fees received under 
the act of March 1st, 1855. 

6. A book wherein shall be recorded the lists of 
crews, and the tonnage, the owner or owners’ names, 
and the place to which she belongs, of each American 
vessel which arrives at a port where resides a United 
States consul. 

7. For binding all official letters received by them. 

8. For such stationery comprised within the follow¬ 
ing articles as may be used in their official correspond¬ 
ence only , viz: Ruled foolscap paper with an inch 
blank margin around each page, envelopes, quills, steel 
pens, ink, wafers, and wax. 

9. For postages on despatches to or from the depart¬ 
ments of the government or its agents abroad, and 
freight and other expenses upon boxes or packages 
sent to them from this Department, or to their care for 
transmission. 

10. For flagstafFs. 

217. Seals, presses, flags, and arms of the United 


81 


States (one of each) are furnished by the Department 
to consuls, &c., but not to the agents appointed by 
them at ports within their jurisdiction. In cases where 
there would not be time to make application for, and 
receive any of these articles, reasonable charges for 
them may be admitted, on making the fact satisfactorily 
to appear that there was an absolute necessity for their 
immediate purchase. 

218 For the expenses incurred as above, it is neces¬ 
sary that regular vouchers should be rendered to the 
Department, with the account, except for postages, and 
that no draft be drawn for the amount until notice is 
received from it that the accounts and vouchers have 
been examined and approved. Should the vouchers 
be in a foreign language, they must be accompanied 
by a translation in English, and no charge is to be 
made therefor. 

219 Drafts must not be made for foreign moneys of 
account or currency, but for the equivalent in money 
of the United States. 

220. No allowance will be made to consuls and com¬ 
mercial agents for office rent, unless the same is specially 
provided for by law; office furniture, repairs of office, 
printing of any kind, printed books, maps, advertise¬ 
ments, unless authorized by law or special instructions; 
clerk hire, copying or translating, except for copies or 
translations made by order of the Department, dona¬ 
tions, carriage hire, or contributions to charitable ob¬ 
jects. Accounts for any of these objects, ivhen author¬ 
ized , are to be separate and distinct from all others. 

221. Expenditures incurred for, or by order of, any 
other Department, are not to be included in any ac- 
30unt against this Department. 

11 


222. The amount allowed for passage to the United 
States of destitute American seamen is payable at the 
treasury of the United States, and not by the collectors 
of ports. The certificate for such compensation should 
be made in accordance with the provisions of the one 
hundred and fifty-sixth section of these Instructions, 
and be transmitted to the Fifth Auditor of the Trea¬ 
sury at Washington. All accounts are to be in the 
name of the consul or commercial agent, and drafts 
on the Department made by those officers only. No 
account or draft of a vice consul or vice commercial 
agent will be attended to. All drafts of consuls or 
commercial agents on this Department must be drawn 
at fifteen days after sight, acceptance waived, in order 
to prevent the possibility of their being dishonored. 

223. No allowance will be made to consuls for ex¬ 
penses incurred in procuring the defence, in any court 
of law, of American seamen, accused of violating the 
laws of foreign countries, without special instructions 
from this Department. 

224. Disbursements incurred for the arrest or im¬ 
prisonment of persons accused of committing any 
crime against the United States, also all charges for 
taking depositions in such cases, should be charged in 
the general quarterly consular account, and will thus 
be reimbursed to the consul from fees received for 
account of the government; but in those consulates 
where the fees are inadequate to cover the salary and 
expenses chargeable to the government, the amount 
thus charged will swell the balance due the consul, and 
will therefore be included in the draft he may draw on 
the Department for such balance. 


For disbursements and expenses, thus incurred for 
the arrest and imprisonment of such persons, the con¬ 
sul will, in all cases, forward a separate and distinct 
account, with the necessary vouchers, in addition to 
including the aggregate in his general account, and 
the items of such account will, of course, be subjected 
to examination and revision by the accounting officers 
of the Treasury. 

In no case are special drafts to be drawn for such 
disbursements and expenses. 

225. No specific instructions can be given as to the 
precise amount a consul may contract to allow a mas¬ 
ter of a vessel for transporting a prisoner to the United 
States for trial. The character of the individual 
charged with the offence is to be taken into considera¬ 
tion by the consul, as well as the opportunities that 
may be offered for his passage to the United States. 

226. If the prisoner be at a port frequented by 
American vessels, no contract for his passage shall be 
made till the consul shall be able, after making sufficient 
inquiry, to make an agreement that shall not be deemed 
unreasonable by himself or the authorities at home. 

227. If the amount demanded should be excessive, 
the consul will take into consideration the probability 
of other vessels arriving within a reasonable time. 

228. If the prisoner is at a port rarely visited by 
American vessels, where the expenses of confinement 
are heavy, these circumstances, and all others bearing 
on the question, should be taken into consideration by 
the consul, and he should conduct as would a discreet 
and prudent man in his own business. 

229. The fourth section of the act of February 
twenty-eight, eighteen hundred and three, makes it 


84 


the duty of consuls, vice consuls, commercial agents 
and vice commercial agents, to send home destitut< 
American seamen from their districts, at a compensa 
tion not to exceed ten dollars each. 1 

But as seamen might be transported from seas and 
districts where there were no United States consuls, vice 
consuls, commercial agents, or vice commercial agents, 
Congress, by an act approved February twenty-eight, 
eighteen hundred and eleven, 2 authorized the Comp¬ 
troller to make such additional allowance as should be 
deemed to be equitable. A consul may, therefore, agree 
upon a reasonable compensation with the master of a 
vessel for the transportation of a prisoner to the United 
States, or, by mutual agreement, leave the compensation 
to be determined by this Department, on the presenta¬ 
tion of all the circumstances after the arrival and de¬ 
livery of the prisoner to the proper authorities. 


CHAPTER XI. 

SALARIES OF CONSULS WHO ARE NOT PERMITTED TO TRANSACT 
BUSINESS. 

230. It is provided by the fourth section of the act 
to remodel the diplomatic and consular systems of the 
United States, that consuls who are appointed to reside 
at the following places, shall receive, during their con¬ 
tinuance in office, an annual compensation for their 
services not exceeding the amount specified herein for 
each, and who shall not be permitted to transact busi¬ 
ness either in their own name or through the agency 
of others: 


1 ii Statutes at Large, p. 204, 


ii Statutes at Large, p. 651. 


85 


GREAT BRITAIN. 

London, seven thousand five hundred dollars. 
Liverpool, seven thousand five hundred dollars. 
Glasgow, four thousand dollars. 

Dundee, two thousand dollars. 

Newcastle, fifteen hundred dollars. 

Leeds, fifteen hundred dollars. 

Belfast, two thousand dollars. 

Hong-Kong, three thousand dollars. 

Calcutta, three thousand five hundred dollars. 
Halifax, two thousand dollars. 

Melbourne, four thousand dollars. 

Nassau, two thousand dollars. 

Kingston, (Jamaica,) two thousand dollars. 

HOLLAND. 

Kotterdam, two thousand dollars. 

Amsterdam, one thousand dollars. 

PRUSSIA. 

Aix-la-Chapelle, twenty-five hundred dollars. 

PRANCE. 

Paris, five thousand dollars. 

Havre, five thousand dollars. 

Marseilles, two thousand five hundred dollars. 
Bordeaux, two thousand dollars. 

Lyons, one thousand dollars. 

La Bochelle, one thousand dollars. 

Nantes, one thousand dollars. 

SPAIN. 

Cadiz, fifteen hundred dollars. 

Malaga, fifteen hundred dollars. 

St. Jago de Cuba, two thousand dollars. 


86 


Matanzas, three thousand dollars. 

St. Johns, (P. R.,) two thousand dollars. 

Trinidad de Cuba, three thousand dollars. 

Ponce, (P. R.,) fifteen hundred dollars. 

Havana, six thousand dollars. 

PORTUGAL. 

Lisbon, fifteen hundred dollars. 

Funchal, fifteen hundred dollars. 

BELGIUM. 

Antwerp, two thousand five hundred dollars. 

RUSSIA. 

St. Petersburg, two thousand five hundred dollars. 

DENMARK. 

St. Thomas, four thousand dollars. 

Elsineur, fifteen hundred dollars. 

AUSTRIA. 

Trieste, two thousand dollars. 

Vienna, one thousand dollars. 

SAXONY. 

Leipsic, fifteen hundred dollars. 

BAVARIA. 

Munich, one thousand dollars. 

HANSEATIC AND FREE CITIES. 

Bremen, two thousand dollars. 

Hamburg, two thousand dollars. 

FRANKFORT-ON-THE-MAYN, 

Including the Grand Duchy of Hesse-Darmstadt, the 
Electorate of Hesse-Cassel, the Duchy of Nassau, and the 
Landgraviate of Hesse-Hombourg, two thousand dollars. 


87 


WURTEMBURG. 

Stuttgardt, one thousand dollars. 

ADEN. 

Carlsrue, one thousand dollars. 

SWITZERLAND. 

Basle, fifteen hundred dollars. 

Zurich, fifteen hundred dollars. 

Geneva, fifteen hundred dollars. 

SARDINIA. 

Genoa, one thousand five hundred dollars. 

TUSCANY. 

Leghorn, fifteen hundred dollars. 

KINGDOM OF THE TWO SICILIES. 

Naples, fifteen hundred dollars. 

Palermo, fifteen hundred dollars. 

Messina, one thousand dollars. 

TURKISH DOMINIONS. 

Constantinople, two thousand five hundred dollars. 
Smyrna, two thousand dollars. 

Beirut, two thousand dollars. 

Jerusalem, one thousand dollars. 

Alexandria, three thousand five hundred dollars. 

BARBARY STATES. 

Tangiers, two thousand five hundred dollars. 
Tripoli, two thousand five hundred dollars. 

Tunis, two thousand five hundred dollars. 

CHINA. 

Canton, three thousand dollars. 

Shanghai, three thousand dollars. 

Amoy, twenty-five hundred dollars. 

Fouchow, two thousand five hundred dollars. 
Ningpo, two thousand five hundred dollars. 


88 


Simoda, — 
Hakodadi, 

Bruni, — 


JAPAN. 


BORNEO. 


SANDWICH ISLANDS. 
Honolulu, four thousand dollars. 


HAYTI. 

Port-au-Prince, two thousand dollars. 

City of St. Domingo, fifteen hundred dollars. 

MEXICO. 

Vera Cruz, three thousand five hundred dollars. 

Acapulco, two thousand dollars. 

CENTRAL AMERICA. 

San Juan del Norte, two thousand dollars. 

San Juan del Sur, two thousand dollars. 

NEW GRANADA. 

Panama, three thousand five hundred dollars. 

Aspinwall, two thousand five hundred dollars. 

VENEZUELA. 

Laguayra, fifteen hundred dollars. 

BRAZIL. 

Rio de Janeiro, six thousand dollars. 

Pernambuco, two thousand dollars. 

ARGENTINE REPUBLIC. 

Buenos Ayres, two thousand dollars. 

1 By the act of 3d March, 1855, making appropriations for the civil and diplo¬ 
matic expenses of government, this salary is fixed at five thousand dollars per 
annum. 





89 


PERU. 

Callao, three thousand five hundred dollars. 

CHILI. 

Valparaiso, three thousand dollars. 


CHAPTER XII. 

SALARIES OF CONSULS WHO ARE AT LIBERTY TO TRANSACT 
BUSINESS. 

231. By the fifth section of the act of 1st March, 
1855, consuls and commercial agents who reside at 
the following places, shall receive, during their continu¬ 
ance in office, an annual compensation for their services 
not exceeding the amount specified herein for each, 
and who shall be at liberty to transact business: 

GREAT BRITAIN. 

Southampton, one thousand dollars. 

Bristol, one thousand dollars. 

Leith, one thousand dollars. 

Dublin, one thousand dollars. 

Cork, one thousand dollars. 

Galway, one thousand dollars. 

Bombay, one thousand dollars. 

Singapore, one thousand dollars. 

Gibraltar, seven hundred and fifty dollars. 

Island of Malta, one thousand dollars. 

Cape Town, one thousand dollars. 

Port Louis, one thousand dollars. 

St. John’s, (X. B.,) one thousand dollars. 

Pictou, one thousand dollars. 

Demarara, one thousand dollars. 

Sidney, one thousand dollars. 

12 


90 


Falkland Islands, one thousand dollars. 

Hobart Town, one thousand dollars. 

Bermuda, one thousand dollars. 

Turk's Island, one thousand dollars. 

Barbadoes, one thousand dollars. 

Island of Trinidad, one thousand dollars. 

St. Helena, one thousand dollars. 

St. Christopher, one thousand dollars. 

Antigua, one thousand dollars. 

Ceylon, one thousand dollars. 

RUSSIA. 

Odessa, fifteen hundred dollars. 

Galatza, one thousand dollars. 

FRANCE. 

Martinique, seven hundred and fifty dollars. 
Miquelon, seven hundred and fifty dollars. 

SPAIN. 

Barcelona, seven hundred and fifty dollars. 

Manilla, seven hundred and fifty dollars. 

PORTUGAL. 

Macao, one thousand dollars. 

Mozambique, seven hundred and fifty dollars. 

Fayal, seven hundred and fifty dollars. 

St. Jago, Cape Yerd, seven hundred and fifty dollars. 

HANOVER AND BRUNSWICK. 

Hanover, five hundred dollars. 

MECKLENBERG-SCHWERIN AND MECKLENBERG-STRELITZ. 
Schwerin, five hundred dollars. 

OLDENBURG. 

Oldenburg, five hundred dollars. 


91 


DANISH DOMINIONS. 

Santa Cruz, seven hundred and fifty dollars. 

SWEDEN AND NORWAY. 

Gothenburg, seven hundred and fifty dollars. 

AUSTRIA. 

Venice, seven hundred and fifty dollars. 

SARDINIA. 

Spezzia, seven hundred and fifty dollars. 

GREECE. 

Athens, one thousand dollars. 

TURKEY. 

Candia, one thousand dollars. 

Cyprus, one thousand dollars. 

IONIAN ISLANDS. 

Zante, one thousand dollars. 

AFRICA. 

Monrovia, one thousand dollars. 

Zanzibar, one thousand dollars. 

NEW ZEALAND. 

Bay Islands, one thousand dollars, 

HAYTI. 

Cape Haytien, one thousand dollars. 

Aux Cayes, five hundred dollars. 

MEXICO. 

Mexico, one thousand dollars. 

Paso del Norte, five hundred dollars. 


92 


Tampico, one thousand dollars. 

Matamoras, one thousand dollars. 

Tabasco, five hundred dollars. 

Mazatlan, five hundred dollars. 

Tehuantepec, one thousand dollars. 

Manatitlan, one thousand dollars. 

CENTRAL AMERICA. 

Omoa 'and Truxillo, one thousand dollars. 

San Jose, five hundred dollars. 

NEW GRANADA. 

Cartagena five hundred dollars. 

Sabanillo, five hundred dollars. 

VENEZUELA. 

Ciudad Bolivar, seven hundred and fifty dollars. 
Puerto Cabello, seven hundred and fifty dollars. 
Maracaibo, seven hundred and fifty dollars. 

ECUADOR. 

Guayaquil, seven hundred and fifty dollars. 

BRAZIL. 

Maranham Island, seven hundred and fifty dollars 
Rio Grande, one thousand dollars. 

Bahia, one thousand dollars. 

Para, one thousand dollars. 

URUGUAY. 

Montevideo, one thousand dollars. 

CHILI. 


Talcahuano, one thousand dollars. 


93 


PERU. 

Paita, five hundred dollars. 

Tumbez, five hundred dollars. 

SANDWICH ISLANDS. 

Bahama, one thousand dollars. 

Hilo, one thousand dollars. 

navigator’s islands. 

Apia, one thousand dollars. 

society islands. 

Tahiti, one thousand dollars. 

FEJEE ISLANDS. 

Lanthala, one thousand dollars. 

HOLLAND. 

Batavia, one thousand dollars. (Commercial agent.) 
Paramaribo, five hundred dollars. (Commercial agent.) 
Padang, five hundred dollars. (Commercial agent.) 

St. Martin, five hundred dollars. (Commercial agent.) 
Curacoa, five hundred dollars. (Commercial agent.) 


CHAPTER XIII. 

SALARIES OF CONSULS GENERAL. 

232. By the act approved the 4th of March, 1855, an 
appropriation was made for the compensation of a con¬ 
sul general to reside at Simoda, in Japan, at the rate 
of five thousand dollars per annum. 1 

233. By the same act, provision was made for the 
appointment and salary of a consul general to reside 
in the North American provinces, with a salary of four 
thousand dollars per annum. 2 

1 Session Acts 1854-5, 659. 2 Ibid., 673. 


94 


CHAPTER XIV. 

DUTIES OF CONSULS IN RESPECT TO UNITED STATES CITIEZNS IN 
GENERAL. 

234. It is the duty of a United States consul to be 
always at his post, to watch over and protect, so far as 
he may be able, the commercial interests of his fellow- 
citizens, and to be ready to assist them with his advice 
on all doubtful occasions. He is not to return home, 
or leave his consulate, even for a short space of time, 
without having previously obtained leave of absence, 
as provided in the thirty-third section. 

235. In the event of any attempts being made to 
injure citizens of the United States, either in their per¬ 
sons or property, he will uphold their rightful interests, 
and the privileges secured them by treaty, by repre¬ 
sentations in the proper official quarter. He will, at 
the same time, be careful to conduct himself with cour¬ 
tesy and moderation in all his transactions with the 
public authorities, and upon no account urge claims 
on behalf of citizens of the United States to which he 
may not, after a faithful examination, believe them 
entitled. 

236. If redress cannot be obtained from the local 
administration, the consul will apply to the legation of 
the United States, if there be one in the country where 
he resides; and in all cases he will transmit copies of his 
correspondence on the subject, with a succinct report 
of his proceedings, to this Department. The consul 
will observe strictly the instructions which he may 
receive from the legation or from this Department. 

237. Consuls are repectfully cautioned not to engage 
in any contentions with the authorities of the places 


95 


where they reside, but to observe, on all occasions, 
towards them, a courteous and (when occasion requires 
it) a firm and dignified demeanor, and in official corre¬ 
spondence to avoid the expression of private or excited 
feeling. 

238. If a citizen of the United States be charged 
with an offence, alleged to have been committed at sea, 
on board of an American vessel, it will be the duty of 
the consul to require the delivery, to himself, of the 
individual so accused, for the purpose of being sent 
home for trial, as provided in the two hundred and 
third and following sections. 

239. United States consuls are often called upon by 
their fellow-citizens at home, or temporarily residing 
within their consulates, to investigate titles to property, 
examine official records, and prepare legal or notarial 
papers. For compensation for such services no provi¬ 
sion is made by law; and it cannot reasonably be ex¬ 
pected that consuls should perform them gratuitously. 
When application is made to consuls for such purposes, 
they will refer the party to a competent attorney or 
notary, or in the event of doing the service themselves, 
they are authorized to make a reasonable charge there¬ 
for, as provided in the twenty-fourth chapter. 


CHAPTER XV. 

DUTIES OF CONSULS IN GRANTING CERTIFICATES AND PASSPORTS. 

240. There is no act of Congress regulating the issuing 
of passports: they are granted upon the ground of in¬ 
ternational courtesy, and as affording evidence to the 
diplomatic and other agents in foreign countries, that 
the bearer thereof is a citizen of the United States, 


96 


and entitled to full protection as such. 1 A passport, in 
proper form, should contain a description of the bearer, 
with his signature; it should also request all whom 
it may concern, to permit the bearer thereof, being a 
citizen of the United States, safely.and freely to pass, 
and, in case of need, to give him all lawful aid and 
protection while so doing. It should be signed by the 
consul, and sealed with the seal of the consulate. It 
should also be numbered; every consul on entering on 
his duties commencing with No. 1, and so on consecu¬ 
tively till the termination of his office. 

241. Consuls are instructed to transmit the name of 
every person to whom a passport has been issued by 
them, to this Department, with the evidence on which 
it is granted. 

242. Consuls are expressly instructed that when an 
application is made for a passport by a native citizen 
of the United States, before granting the passport, the 
applicant must file in the consulate an affidavit stating 
this fact, and also his age, and place of birth; this 
must be signed and sworn to by himself, and one other 
citizen of the United States, named therein, to whom 
he is personally known, and to the best of whose 
knowledge and belief the declaration made by the 
affiant is true. 

243. If the applicant be a naturalized citizen, a pass¬ 
port can only be granted upon his exhibiting a certificate 
of naturalization; an authenticated copy of which must 
be transmitted by the consul to this Department. Con¬ 
suls are instructed to exercise the utmost care and dili¬ 
gence in seeing that no passport is granted without 
clear evidence that the applicant is entitled to it as an 

1 Johnson &, Reddall’s Manual, edition of 1855, p. 69. 


97 


American citizen. A passport is substantially a certifi¬ 
cate of citizenship ; which it would be a falsehood and a 
fraud for a United States consul to give, unless to an 
individual who is by birth or naturalization a citizen 
of the United States. 

244. Consuls are not to grant passports simply upon 
passports issued by State or corporate authorities or 
notaries public; and great caution must be observed in 
granting passports upon certificates of citizenship given 
by such authorities, as the United States consulates are 
not furnished with official information either in regard 
to their appointments, or to their signatures and seals 
of office. 

245. Persons born abroad who may have merely de¬ 
clared their intention to become citizens, frequently have 
occasion to return to Europe before they have resided 
in the United States long enough to enable them to 
carry their intention into effect pursuant to law. In 
regard to the application of such persons for passports, 
and also of aliens who have become domiciled in the 
United States, consuls are instructed that both of these 
classes of persons are entitled to some recognition by 
this government; and this can best be afforded by 
certifying to the genuineness of the certificates of their 
declarations of intention, when presented for attesta¬ 
tion, provided the consuls should have no reasonable 
doubts of their authenticity. 

246. When the applicant is accompanied by his wife, 
children, or servants, or by females under his protec¬ 
tion, it will be sufficient to state the names and ages of 
such persons and their relationship' to the applicant. 

247. Children under age at the time of the naturaliza- 

13 


98 


tion of their parents, are entitled to passports as citizens 
of the United States, provided they have by no act of 
their own chosen another allegiance. 1 

248. An individual who thus derives his citizenship, 
should file in the consulate an authenticated copy of 
the certificate of naturalization of his parents, accom¬ 
panied by his own affidavit, made before any officer 
duly qualified to administer oaths, that he is a citizen 
of the United States. 

249. A passport, or other paper granted by a consul, 
&c, certifying that an alien, knowing him or her to be 
such, is a citizen of the United States, 2 is an offence 
punishable by a fine not exceeding one thousand dol¬ 
lars, to which the President will always add depriva¬ 
tion of office. For a proper form of passport, see 
Form No. 13. 

250. The same observations apply to certificates that 
property belonging to aliens is the property of citizens, 
knowing the fact to be otherwise; by which offence a 
much higher penalty is incurred, the punishment being 
a fine not exceeding ten thousand dollars and imprison¬ 
ment not exceeding three years. 3 Consuls, therefore, 
in all such cases, will require such evidence as will show 
clearly that they have good reason to believe the truth 
of the facts they certify. 

251. By the revenue laws of the United States, con¬ 
suls are authorized to give certificates of the landing of 
merchandise, to obtain the benefit of drawback. As 
great frauds upon the revenue have sometimes been 
committed by obtaining certificates without a due 
examination of the articles, consuls are instructed to 

1 Johnson & Reddall’s Manual, Naturalization Laws, pp. 70, 71. 

2 ii Statutes at Large, p. 205, 3 Id., p. 204. 


99 


give no such certificates without personal inspection or 
full proof. 

252. Authority is also given by the same laws to cer¬ 
tify invoices of goods shipped for the United States; bu-t 
the shipper is entitled to include in one invoice all the 
goods he may ship by the same vessel. It is provided 
by the act approved March 3d, 1835, that if any con¬ 
sul, vice consul, commercial agent, or vice commercial 
agent, shall knowingly and falsely certify to any invoice, 
or other papers to which his certificate is by law author¬ 
ized or required, he shall, on conviction thereof, forfeit 
and pay a fine not exceeding ten thousand dollars, and 
be imprisoned for a term not exceeding three years. 1 
On all subjects relating to duties regarding the reve¬ 
nues, particular instructions will be given from time to 
time by the Secretary of the Treasury, which will be 
equally obligatory as if they had proceeded from this 
Department. 


CHAPTER XYI. 

DUTIES OF CONSULS IN RESPECT TO THE PASSENGER ACT. 

253. It is made the duty of the Secretary of State, 
by the second paragraph of the eighteenth section of 
the act approved the 3d of March, 1855 2 , to give 
notice, in the ports of Europe and elsewhere, of the 
provisions of the act to regulate the carriage of passen¬ 
gers in steamships and other vessels, approved March 
3, 1855. 3 

i iv Statutes at Large, p. 773. 2 Session Acts, p. 720. 

3 Ibid., p. 715; Johnson and Reddall’s Manual, passengers and passenger ships. 


100 


254. The special attention of United States consuls 
is called to this act, (which will be found annexed to 
the “General Instructions,”) and also to the following 
instructions, which have been issued by the Treasury 
Department, in reference to it: 

“It will be observed that, whilst this act prescribes 
spaces of certain clear superficial feet of deck to each 
passenger, (other than cabin passengers,) it moreover 
fixes a maximum by restricting the number of such 
passengers allowed to be carried in any such vessel in 
the proportion of one to every two tons of said vessel’s 
tonnage measurement, excluding children under the 
age of one year in the computation, and computing two 
children over one and under eight years of age as one 
passenger. It follows, that though a vessel might 
afford clear spaces of the dimensions indicated for a 
greater number of passengers than one to every two 
tons of her tonnage measurement, yet if the number 
shall exceed that allowed by her tonnage measurement, 
the penalties imposed by the law would attach; or if 
her tonnage measurement should allow a greater num¬ 
ber of passengers than according to the clear spaces pre¬ 
scribed by law she could carry, yet if the number shall 
exceed that allowed by the clear spaces prescribed by 
law, the penalties imposed by the law would equally 
attach. In other words, the one rule, as to the number 
of passengers a vessel is entitled to carry, is a limitation 
upon the other. The tonnage of each vessel, according 
to custom-house measurement, must, therefore, be ascer¬ 
tained, as well as the measurement of the spaces allotted 
to passengers, in order to determine the number of 
passengers she is entitled to carry. 

“ In order to determine the number of passengers a 


101 


vessel is entitled to carry in accordance with the spaces 
prescribed by this act, the height between decks must 
be measured from the bottom edge of the carlings or 
deck beams to the top floor below; and no space shall 
be considered available for passengers that has not, 
when measured in this manner, the height called for 
by the law, as the case may be; nor shall any space in 
the vessel of a less width than four feet be measured ; 
provided, however, if the vessel shall, in accordance 
with the provisions of the first section of this act, car¬ 
ry any portion of her cargo, or any other article or 
articles, on any of the decks, cabins, or other places 
appropriated to the use of passengers, in lockers or 
enclosures prepared for the purpose, the height between 
decks shall be measured from the bottom edge of the 
carlings or deck beams to the upper surface of said 
lockers or enclosed spaces, which shall be deemed and 
taken to be the deck or platform from which measure¬ 
ment shall be made for all the purposes of this act, and 
the spaces occupied by said lockers or enclosed spaces 
shall be deducted from the spaces allowable for the use 
of passengers. 

“For example: The spaces in the main and poop 
decks or platforms, and in the deck houses, if any 
there be, will be, 16 by 6 = 96 feet; lower deck, 18 by 
6 .= 108 feet; two-deck vessels, 14 by 7^ = 105 feet. 

‘ The encumbering by merchandise or stores, not 
the personal baggage of the passengers, except in 
lockers or enclosures prepared for the purpose, of any 
part of the space occupied by the passengers, will 
vitiate the whole space, unless the part so encumbered 
be separated from that so occupied, by a substantial 
bulkhead. 


J 02 


“The deck or platform must be of a permanent 
nature, flush, and impervious to water. 

“It will be perceived that the 19th section of this 
act expressly repeals all former laws on the subject, 
except so far as concerns the prosecution, recovery, 
distribution or remission of any fines, penalties, and 
forfeitures which may have been incurred under for¬ 
mer laws prior to the day this act shall go into effect; 
which, with respect to vessels sailing from ports in the 
United States on the eastern side of the continent, is 
within thirty days from the time of its approval; with 
respect to vessels sailing from ports in the United States 
on the western side of the continent, and from ports in 
Europe, is within sixty days from the time of its ap¬ 
proval ; and with respect to vessels sailing from ports 
in other parts of the world, is within six months from 
the time of its approval. The provisions of existing 
laws will be enforced until this act shall go into effect, 
as above specified. 

“ It is deemed sufficient only further to call par¬ 
ticular attention to the 1st, 2d, 6th, 10th, 11th, 14th, 
15 th, 16 th, and 17th sections of this act, in which certain 
provisions, different from existing laws, have been 
enacted, and to state that all the requirements of said 
sections must be strictly enforced.” 

255. Consuls will not omit to report immediately to 
this Department, any violation of the provisions of this 
act by the masters of vessels bound to any port in 
the United States, or any Territory thereof. 

256 They will not omit, likewise, in cases of the in¬ 
tended shipment of paupers and pardoned convicts to 
this country, to give timely notice of the fact, both to 
this Department and to the collector of the customs at 


103 


the port to which the vessel having them on board may 
be bound, furnishing the names of the parties, a de¬ 
scription of their persons, the name of the vessel, the 
date of sailing, &c., in order that proper steps may be 
taken for the enforcement of such police regulations 
as may have been adopted by the several States upon 
the subject. 


CHAPTER XVII. 

DUTIES OF UNITED STATES CONSULS IN CHINA. 

257. Under the treaty of the United States with 
China, American citizens, charged with the commission 
of criminal offences in China, are withdrawn from the 
jurisdiction of that country, and are subject to be tried 
and punished only by the consul or other public func¬ 
tionary of the United States thereto authorized, accord¬ 
ing to the laws of the United States. In like manner, 
all litigated questions arising between American citizens 
in China, involving the rights of persons or of prop¬ 
erty, are subject to the jurisdiction and regulation of 
the authorities of their own government; and contro¬ 
versies occurring in that country between American 
citizens and the subjects of other governments, are to 
be regulated by treaties existing respectively, without 
interference on the part of China. 1 

258. These are very important concessions to Ameri- 
can’citizens, and in connection with the act of August 11, 
1848, 2 to carry into effect the provisions of the existing 
treaty with China, and the Ottoman Porte, by vesting 
judicial powers in the commissioner and consuls in China, 
they impose weighty duties and responsibilities. 


i viii Statutes at Large, p, 597. 


2 ix Statutes at Large, p. 276. 


104 


259. By the provisions of this act, the laws of the 
United States are extended over the citizens of the 
United States in China; and where they are deficient, 
recourse is to be had to the common law ; and if neither 
the common law nor statutes of the United States 
furnish suitable remedies, the commissioner shall by 
decrees and regulations, which have the force of 
law, supply the deficiencies: such regulations and 
decrees to be transmitted to the President to be laid 
before Congress. The decision of the consul, who, in 
cases of intricacy, or in criminal cases, is to be aided 
in his judgment by one or more citizens of the United 
States, is subject in civil cases beyond a certain amount 
to an appeal to the commissioner. The only capital 
cases are murder and insurrection or rebellion against 
the Chinese government; and in all other cases the pun¬ 
ishment is fine and imprisonment, with an appeal to the 
commissioner; and no person can be convicted of a 
crime punishable with death, unless the consul and his 
associates all concur in opinion, and the commissioner 
approves of the conviction. The commissioner and the 
consuls may call on the Chinese authorites to support 
them in the exercise of the powers confided to them. 

260. It is provided by the fifth and sixth sections of 
the act above mentioned, that, in order to organize and 
carry into effect the system of jurisprudence demanded 
by said treaty, the commissioner, with the advice of 
the several consuls for the five ports named in said 
treaty, or so many of them as can be conveniently 
assembled, shall prescribe the forms of all processes 
which shall be issued by any of said consuls; the 
mode of executing and the time of returning the same; 
the manner in which trials shall be conducted, and how 


105 


the records thereof shall be kept; the form of oaths 
for Christian witnesses, and the mode of examining all 
other witnesses; the costs which shall be allowed to 
the prevailing party, and the fees which shall be paid 
for judicial services to defray necessary expenses; the 
manner in which all officers and agents to execute pro¬ 
cess, and to carry the act into effect, shall be appointed 
and compensated; the form of bail bonds, and the 
security which shall be required of the party who 
appeals from the decision of a consul; and generally, 
without further enumeration, to make all such decrees 
and regulations from time to time, under the provisions 
of the act, as the exigency may demand: and all such 
regulations, decrees, and orders shall be plainly drawn 
up in writing, and submitted, as above provided, for 
the advice of the consuls, or as many of them^as can be 
consulted without prejudicial delay or inconvenience, 
who shall each signify his assent or dissent in writing, 
with his name subscribed thereto; and after taking 
such advice, and considering the same, the commis¬ 
sioner may, nevertheless, by causing the decree, order, 
or regulation to be published with his signature there¬ 
to, and the opinions of his advisers inscribed thereon, 
make it become binding and obligatory until annulled or 
modified by Congress, and it shall take effect from the 
publication or any subsequent day thereto named in 
the act; and all such regulations, orders, and decrees 
shall, as speedily as may be after publication, be trans¬ 
mitted by the commissioner, with the opinions of his 
advisers, as drawn up by them severally, to the Presi¬ 
dent, to be laid before Congress for revision. 

261. The high power conferred by these and subse¬ 
quent sections of the act, are to be exercised, after 
careful deliberation, with the utmost discretion. 

14 


262. It is expected that the “regulations, orders, 
and decrees ” thus made binding and obligatory until 
annulled or modified by Congress, will, in all cases, 
immediately after “publication,” be transmitted to the 
government for the purpose of being “ laid before Con¬ 
gress for revision.” 

263. It is of the utmost importance to the interests 
of the United States in China, that the stipulations of 
the treaty should be carefully regarded, and all viola¬ 
tions thereof, either by our own citizens, or by the 
Chinese, repressed or prevented ; and in all controver¬ 
sies between them, growing out of commercial or social 
intercourse, that justice be impartially administered. 

264. A rigid observance of the faith of treaties is 
appreciated by all mankind, whether civilized or 
savage, and consuls cannot be too vigilant, both by 
their authority and influence, in impressing upon our 
countrymen in that distant region, the necessity of 
regulating their conduct towards the natives, by those 
great principles which bind nations together in bonds 
of mutual peace and harmony. A trifling individual 
advantage, unfairly obtained in our intercourse with so 
jealous and suspicious a people as the Chinese, may do 
essential injury for years to come, to the character of 
our country, and its great commercial interests. 1 

265. In the present agitated state of China, the prop¬ 
erty of our citizens and their rights are probably in 
unusual danger; consuls will therefore be vigilant and 
active in alfording them all the protection within their 
power. 

266. The nineteenth article of the treaty stipulates, 
in regard to citizens of the United States, that if their 
dwellings or property be threatened or attacked by 

1 Instructions to Commissioner Everett, 15th April, 1845. 


107 


mobs, incendiaries, or other violent or lawless persons, 
the local officers, on requisition of the consul, will im¬ 
mediately despatch a military force to disperse the 
rioters, and will apprehend the guilty individuals and 
punish them with the utmost rigor of the law. 1 These 
stipulations should be strictly observed; and whenever 
a riot shall be apprehended, a requisition should be 
made by the consul on the 41 local officers” for u a mili¬ 
tary force to disperse the rioters.” If, after such a 
requisition by the consul, the local officers should re¬ 
fuse or neglect immediately to despatch a military force 
to disperse the rioters, the Chinese government would 
be responsible for all the injuries resulting from this 
neglect or refusal. If the property of American citi¬ 
zens should be destroyed in consequence of a failure 
on the part of the 44 local officers” to perform this 
treaty obligation, the Chinese government would be 
bound to repair the loss. 2 

267. In case of the violation of the Chinese laws in 
regard to imports by any of our citizens, the consuls 
will notify them that it is stipulated by the thirty-third 
article of the treaty, that 44 citizens of the United 
States who shall attempt to trade clandestinely with 
such of the ports of China as are not open to foreign 
commerce, or who shall trade in opium, or any other 
contraband article of merchandise, shall be subject to 
be dealt with by the Ghinese government, without- 
being entitled to any countenance or protection from 
that of the United States; and the United States will 
take measures to prevent their flag from being abused 
by the subjects of other nations, as a cover for the vio¬ 
lation of the laws of the Empire.” 


1 viii Statutes at Large, p. 596. 

2 Instructions to Commissioner Everett, 28th June, J847. 


108 


268. Consuls will cause it to be clearly understood, 
both by Americans in China, and, so far as it is possi¬ 
ble, by the Chinese themselves, that the government 
from which they derive their authority has no dispo¬ 
sition to encourage, and will not encourage, any viola¬ 
tion of the commercial regulations of China by citizens 
of the United States. 

269. Consuls will state, in the fullest manner, the 
acknowledgment of the government, that the commer¬ 
cial regulations of the Empire, having become fairly 
and fully known, ought to be respected by all ships 
and all persons visiting its ports; and if citizens of the 
United States, under these circumstances, are found 
violating well-known laws of trade, their government 
will not interfere to protect them from the conse¬ 
quences of their own illegal conduct. 1 

270. In the present condition of China, it is believed 
that the United States consuls may do much by the 
exercise of a prudent, though firm and independent, 
course of conduct, to remove some of the onerous 
commercial restrictions existing in China, and obtain 
increased facilities of intercourse, not exclusively for 
the citizens of their own country, but to open the 
Chinese Empire generally to the commercial enterprise 
of all the civilized nations of the world. For the ac¬ 
complishment of this object, consuls will do what they 
can within their proper sphere of action. Nevertheless, 
all treaty stipulations with China must be respected, 
and the settled policy of the United States of non¬ 
interference in the contests which arise between the 
people and their rulers, must be observed. 2 

271. The very great distance of China from the seat 

1 Mr. Webster’s instruction,-8th May, 1843. 

2 Instructions to Mr. Marshall, 7th June, 1853. 


109 


of government of the United States, the long delay in 
receiving and transmitting communications between 
it and the United States consuls, and the constantly 
changing aspect of affairs there, render it necessary to 
leave much to the discretion and good judgment of 
those who have charge of the commercial and other 
interests of the United States in that distant country. 

272. Consuls will, on all proper occasions, cultivate 
the friendly disposition of the Chinese people, avoiding 
as far as possible the giving of offence either to their 
pride or their prejudices. They will assure them that 
it is both the desire and the interest of the United 
States that they shall be prosperous, united, and at 
peace with foreign nations and among themselves; 
that this country has no ambitious designs to accom¬ 
plish in regard to them, no desire to acquire any of 
their territory, and the greater and more prosperous 
they become, the more mutually beneficial will be the 
trade between the two countries. Their prosperity 
will be for the good of the United States, and what¬ 
ever tends to impair it, a loss. 

273. Consuls may do much towards furnishing the 
Chinese with correct and accurate knowledge, in re¬ 
spect to the political power and commercial resources 
of other nations in comparison with their own, and in 
this manner lead them to entertain for the United 
States a respectful consideration. They may also in¬ 
duce them to adopt higher and more just principles in 
their intercourse with other nations, and thus advance 
the commercial prosperity of their country, whose inter¬ 
ests in that distant region are entrusted to their care, 
as well as secure benefits and blessings to China. 

274. In case a consul in China should find it neces- 


110 


sary, for urgent reasons, to leave temporarily his post, 
with the consent of the President, he is authorized to 
appoint, with the approval of this Department, some 
suitable person to act as vice consul, to whom he may 
delegate his consular functions. 

275. It is expressly to be understood, that such 
vice consul is not authorized to exercise judicial func- 
tions, under the act of 11th August, 1848. To say 
nothing of the anomaly of a public functionary dele¬ 
gating his judicial authority to another, the act above 
referred to requires the consul to be “duly appointed” 
before he can exercise judicial functions under it; and 
to be “ duly appointed,” he must first be nominated by 
the President, and afterwards confirmed by the Senate, 
except when made to fill a vacancy occuring during a 
recess of that body. 

CHAPTER XVIII. 

DUTIES OE THE UNITED STATES CONSULS IN AFRICA. 

176. It is stipulated by the twentieth and twenty- 
first articles of the treaty of 1787, with Morocco, which 
was renewed in 1836 for fifty years, that if any of the 
citizens of the United States, or any persons under their 
protection, have disputes with each other, the consul 
shall decide between the parties; and whenever the 
consul requires any aid or assistance from the govern¬ 
ment to enforce his decision, it shall be immediately 
granted to him. 

277. The consul is also to assist at any trial against 
a citizen of the United States for killing and wounding 
an American citizen. 1 


viii Statutes at Large, page 103; Id., 48G. 


Ill 


278. The treaty with Tunis of 1797 contains the 
same provision as the treaty with Morocco, and it also 
provides for the presence of the consul in case of any 
commercial dispute between Americans and the sub¬ 
jects of the Dey. In 1824 some alterations were made 
in the sixth, eleventh, twelfth and fourteenth articles 
of the treaty, 1 to which attention is also directed. 

279. The treaty of the United States with the Sultan 
of Muscat in 1833, authorizes the appointment of con¬ 
suls in the ports of the Sultan where the principal 
commerce is carried on; which consuls shall be exclu¬ 
sive judges of all disputes or suits wherein American 
citizens shall be engaged with each other. 2 

280. The remarks which are made in regard to the 
exterritoriality of consuls in Turkey and China are ap¬ 
plicable to those in the Mohammedan and Pagan states 
in Africa. 3 

281. While the increasing commercial intercourse 
between the United States and Africa demands atten¬ 
tion on the part of the several United States consuls, it 
is especially their duty to cultivate and preserve 
friendly relations and intercourse between the citizens 
of their own country and those to which they are 
respectively accredited. 

282. In the great African pashalics, although subject 
to the sovereignty of the Turkish Empire, the right is 
secured by treaty, and it should be strictly maintained, 
to address, whenever occasion requires it, the highest 
provincial as well as the local authorities of the place 
where the consul resides. 4 And to enable the consul 
the better to discharge his duties, he bears with his 

1 viii Statutes at Large, p. 160; Id., 298. 2 Id., p. 459. 

3 Vide iufra p. 137 et seq. 4 Vide infra p. 145, appendix. 


112 


commission a letter of credence, addressed to the 
highest authority in the pashalic, requesting him to 
be received in his official character, and to be duly 
respected ; and also that full credit may be given to 
what he shall represent on the part of his government, 
and stating that the consul has been appointed to 
watch over the interests of the United States, and, by 
all honorable means, to maintain the harmony existing 
between the United States and the country, to which 
he is sent. His official duties thus expand of necessity 
into a large field, because he will thus be called upon 
to communicate with his own government, and with 
that near which he resides, on matters which would 
otherwise devolve on a minister. 

283. It is expected that the United States consuls 
in Africa will make themselves acquainted with the 
political state of the country in which their consulate 
is situated, and with its relations with other states, and 
communicate whatever they may learn on these sub¬ 
jects to this Department. Any statistical, geographi¬ 
cal, or other interesting information, will be very ac¬ 
ceptable to this government, and may greatly promote 
the interests of our fellow-citizens, by opening new 
avenues for trade and commercial intercourse. Consuls 
are requested to make such suggestions, from time to 
time, as may occur to them for the accomplishment of 
these objects. 

284. The depredations which are occasionally com¬ 
mitted by barbarians on some parts of the African 
coast demand unceasing vigilance. 

Consuls will impress upon the authorities of the 
places where they reside, in the event of such depre¬ 
dations, that the United States will hold them respon- 


113 


sible for all injuries to the persons and property of 
American citizens, committed or tolerated within their 
territorial limits, in violation <jf the established laws of 
civilized nations. 

285. Consuls are reminded that it is the practice of 
this government to respect the institutions of other 
countries, and its representatives abroad have on all 
occasions been instructed to give no countenance to 
persons who may wilfully violate their existing laws. 
Adhering strictly to this principle, consuls will, of 
course, decline all official interference in cases in which 
the law of the land is in conflict with the demands of 
those who may invoke their interposition. Never* 
theless, when claims are made against Mohammedans, 
under any local custom established among alien resi¬ 
dents, although not in accordance with the Mohammedan 
laws, there is no objection to their employing their 
best exertions to bring them, by mutual amicable agree¬ 
ment between the contending parties, to a settlement 
as favorable as possible for any American citizen who 
may be therein interested; but such claims must never 
be urged by imprisonment, nor by any other coercive 
measures, nor must any official proceedings upon them 
be demanded from the authorities of the place. 

CHAPTEB XIX. 

DUTIES OF UNITED STATES CONSULS IN TURKEY. 

286. In the early stages of the progress of the 
northern conquerors over Europe, they were accus¬ 
tomed to allow to such of the conquered nations as 
desired it, the privilege of being governed by their 
own peculiar laws and tried by their own magistrates. 

15 


114 


287. As the several European governments became 
consolidated, the conquerors and the conquered coal¬ 
esced into one people, and their separate jurisdictions 
disappeared, and the more modern idea began to pre¬ 
vail, that each government is, in general, to exercise 
exclusive jurisdiction over all persons in its territory, 
with a few exceptions established or defined either by 
the usages of the nations of Christendom or by specific 
treaties. The old usage, however, remains in full force 
in the East. Under these circumstances, it came to be 
the received law of nations in Christendom, that 
foreigners as well as subjects in any given country are 
amenable to the criminal and in many respects to the 
civil jurisdiction of the local authorities of the govern¬ 
ment; and of course the authority of commercial con¬ 
suls under the same circumstances was deprived of the 
judicial and magisterial functions which it continues 
to possess in the East. The extended power of foreign 
consuls, still maintained by Christian states as against 
Mohammedan states, was the original fact; the limited 
power of foreign consuls, within Christendom itself, is 
the new fact. A foreigner who happens to be in any 
of the countries of Christendom, does not need for his 
personal security that he should be exempt from the 
local jurisdiction, but only that there should be at hand 
consular or other officers of his country through whose 
intervention he may be sure of just treatment from the 
local sovereign, or, if need be, make his individual 
case a public one, and invoke in his aid the interven¬ 
tion of his own government. 

288. In the semi-barbarous Mohammedan and Pagan 
states, on the contrary, no Christian feels safe in sub¬ 
jection to the local authorities; and there, accordingly 


115 


each Christian state asserts for its subjects more or 
less of exemption from the authority of the local 
sovereign. 

289. Thus, at the present time, throughout Christen¬ 
dom, the general rule prevails, that foreigners are sub¬ 
ject in all criminal and in-most civil matters to the 
local jurisdiction. But in all Mohammedan and Pagan 
states, a different rule prevails. 

290. In the law of nations, as to Europe, the rule is, 
that men take their national character from the general 
character of the country in which they reside; and this 
rule applies equally to America. But in Asia and 
Africa, an immiscible character is kept up, and Euro¬ 
peans, trading under the protection of a factory, take 
their national character from the establishment under 
which they live and trade. 

291. This rule applies to those parts of the world 
from obvious reasons of policy, because foreigners are 
not admitted there, as in Europe and the western part 
of the world, into the general body and mass of the 
society of the nation, but they continue strangers and 
sojourners, not acquiring any national character under 
the general sovereignty of the country. 1 The subjects 
or citizens of Christian states, who may happen to be 
sojourning or even permanently residing in Turkey 
and its dependencies, are privileged persons, politically 
as well as commercially. In all cases the ministers and 
consuls of their country have exercised, not only a 
protecting political authority, but also, under sundry 
qualifications and modifications, varying according to 
treaty or usage, judicial functions and jurisdiction. 

292. Thus, our treaty with Turkey provides that “if 


1 i Kent, 78, 79. 


11G 


litigations and disputes should arise between the sub¬ 
jects of the Sublime Porte and citizens of the United 
States, the parties shall not be heard, nor shall judg¬ 
ment be pronounced, unless the American dragoman 
be present. Causes in which the sum may exceed five 
hundred piastres shall be submitted to the Sublime 
Porte, to be decided according to the laws of equity 
and justice. Citizens of the Uuited States of America, 
quietly pursuing their commerce, and not being 
charged or convicted of any crime or offence, shall 
not be molested; and even when they may have com¬ 
mitted some offence, they shall not be arrested and put 
in prison by the local authorities, but they shall be 
tried by their minister or consul, and punished accord¬ 
ing to their offence, following in this respect the usage 
observed towards other Franks.” 1 

293. By the 22d section of the act approved August 
11, 1848, its provisions, so far as they relate to crimes 
committed by citizens of the United States, are ex¬ 
tended to Turkey, under the treaty with the Sublime 
Porte of May 7, 1830, and are to be executed in the 
dominion of the Sublime Porte, in conformity with the 
provisions of the treaty, by the minister of the United 
States, and the consuls appointed by the United States 
to reside therein, who are ex-officio vested with the 
powers contained in the act for the purposes therein 
expressed, so far as regards the punishment of crime. 2 

294. It is further stipulated that the word consul 
shall be understood to mean any person vested by the 
United States with and exercising the consular au¬ 
thority in any port of Turkey. 

295. By the laws of Turkey and other Eastern 


1 viii Statutes at Large, 409. 


ix Statutes at Large, 279. 


117 


nations, the consulates therein may receive under 
their protection strangers and sojourners whose re¬ 
ligion and social manners do not assimilate with the 
religion and manners of those countries. 

296. The individuals who are thus protected become 
thereby clothed, for the time being, with the nationality 
of the protecting consulate. Usage, if not positive stip¬ 
ulation, recognises and sanctions the rights acquired 
by this connection. Consuls of the United States are, 
however, instructed that, while it is expected that the 
same rights and privileges will be accorded to them 
in regard to protecting persons not citizens of the 
United States as may be enjoyed by the consuls of 
other nations, who have no special treaty stipulation 
on the subject, they are to exercise this right with 
much discretion. 

297. If custom in Turkey gives to foreign consuls 
the right of protecting even Ottoman subjects, it is 
presumed that this right is limited to such persons as 
may be absolutely necessary for the discharge of the 
consular functions, and must have originated in conse¬ 
quence of the difficulty of obtaining persons not sub¬ 
jects of the Port<? sufficiently acquainted with the ori¬ 
ental languages. No person is to be employed in the 
American consulates lor the purpose of screening him 
from prosecutions for offences against the laws of the 
country, nor any one known to be reasonably objection¬ 
able to the Turkish government. 

298. European consulates in the East are in the con¬ 
stant habit of opening their doors for the reception of 
inmates, who are received irrespective of the country 
of their birth or allegiance, and it is not uncommon for 
them to have a large number of such proteges. Inter* 


118 


national law recognises and sanctions the rights ac¬ 
quired by this connection. No passports or certificates 
of citizenship are to be given to such individuals, but 
simply a tezkereh , or certificate that the person to 
whom it is given is cared for and received under the 
protection of the government whose agent has 
granted it. 1 

299. Under the existing treaty of the United States 
with Turkey, our commerce is placed on the footing of 
the most favored nations; thus securing to our mer¬ 
chant vessels the privilege of trading to all the points 
of Turkey in Europe, Asia, and Africa, on the same 
conditions as those granted to the most favored nations. 
Thus our vessels may now trade to the ports of Egypt 
and Asia Minor, to the Turkish Islands of the Archipel¬ 
ago, and to the Ottoman ports of Europe, and on the 
Asiatic shore of the Black sea. This is at once an 
immense field for the enterprise of our merchants and 
seamen. Many facilities are thus offered for the ex¬ 
tension of our commerce with the nations of the East; 
and consuls may render important services to their 
countrymen by collecting all the information in their 
power in regard to the productions and commerce of 
these countries, and transmitting it to this Department, 
by which it will be published from time to time for 
the general advantage of American citizens. 

300. Considering the extensive powers conferred 
upon consuls by the treaty of the United States with 
Turkey, great care must be exercised in the selection 
of persons for appointment as consular agents. 

i For the jurisdiction of consuls in the Levant, China, and Muscat, see Moreuil 
Manuel des Agents Consulaires, pp. 127-377; also Mensch, Manuel Pratique du 
Consulat, p. 3; Wheaton’s Elements of International Law, p. 122 and note; 
also Miltitz, tome i, p. 524. 


119 


CHAPTER XX. 

VERIFICATION OF INVOICES. 

301. Consuls and commercial agents of the United 
States are especially instructed to observe carefully 
the following regulations, addressed to them by the 
Secretary of the Treasury, in reference to the require¬ 
ments of existing laws respecting the proper verifica¬ 
tion of invoices: 


‘ ‘ Treasury Department, 

“September 3, 1855. 

“ For the government of consuls and commercial 
agents of the United States, in reference to the re¬ 
quirements of existing laws respecting the proper 
verification of invoices, it is deemed expedient to re¬ 
issue, in a compendious form, the General Regulations 
of this Department heretofore promulgated on the 
subject, with such additional instructions and explana¬ 
tions as seem to be called for. 

u With a view to estimate correctly the amount of 
duties to be charged on merchandise invoiced in a cur¬ 
rency of which the value is not fixed by the laws of 
the United States, the collectors of the customs have 
.been instructed, by direction of the President, to re¬ 
quire from the importer of merchandise thus invoiced, 
a certificate from the consul of the United States, if 
there be one at the place of exportation, of the true 
value of such currency in Spanish or United States 
silver dollars; and it is the President’s desire, that 
such certificates be given by the consuls of the United 
States, on the application of the party, and on payment 
of the fees authorized by law therefor. 


120 


“ Consuls are also requested to transmit, at least once 
a month, if opportunity offers, to this Department, a 
statement of the rates at which any depreciated cur¬ 
rency of the country they reside in is computed in 
United States or Spanish dollars, or in silver or gold 
coins of other countries; observing, in all cases of an 
estimate of the currency in such foreign coins, that 
their weight and standard should be made known to 
the Department. 

“Under the provisions of the act of Congress of 1st 
March, 1823, the invoices of all imported goods sub¬ 
ject to ad valorem duty belonging to persons not 
residing in the United States, must be sworn to and 
verified by consular certificates, according to one of 
the annexed forms, as the case may be. 

u If there be no consul or commercial agent of the 
United States in the country from which the merchan¬ 
dise shall have been imported, the authentication 
must be executed by a consul of a nation at the time 
in amity with the United States, if there be any such 
residing there. If there be no such consul, the authen¬ 
tication must be made by two respectable merchants, 
if any such there be, residing at the port from which 
the merchandise shall have been imported. 

u This formality is not required by law where the 
same description of goods, liable to a similar rate of 
duty, may be imported by a person residing in the 
United States, as the law authorizes the owner, con¬ 
signee, importer, or agent, to swear to the foreign cost 
or value of the goods on making entry at the custom¬ 
house. 

“ Invoices of ad valorem or free goods, when made 
out in a foreign depreciated currency, or a currency 


121 


the value of which is not fixed by the laws of the 
United States, whether the importer or owner resides 
in this country or abroad, must in each case be accom¬ 
panied by a consular certificate, showing the value of 
such currency in Spanish or United States silver dol¬ 
lars, according to the annexed form. 

u It is to be remarked that, by the act of 3d March, 
1801, invoices of all goods imported into the United 
States subjected to a duty ad valorem , are required to be 
4 made out in the currency of the place or country 
from whence the importation shall be made; and shall 
contain a true statement of the actual cost of such 
goods in such foreign currency or currencies, without 
any respect to the value of the coins of the United 
States, or foreign coins which now are, or shall be, by 
law, made current within the United States, in such 
foreign place or country.’ Hence, invoices of free 
goods are not required to be made out in the currency 
of the country from whence the goods may be import¬ 
ed ; but whenever invoices of such goods may be made 
out in the currency of the country, and said currency 
is depreciated, and its value not fixed by any law of 
the United States, a consular certificate of the value of 
such currency must, as before intimated, accompany 
the same. 

“ There is nothing in the law or instructions of the 
Department to prohibit invoices of free goods from 
being made out in the currency of the United States, 
or that of any other country where its value is fixed 
by our laws. 

u The revenue laws of the United States require two 
consular certificates only to invoices of foreign merch¬ 
andise imported into the country, (the owners of which 
16 


122 


reside abroad)—one authenticating the invoice, the 
other as to the value in Spanish or American dollars 
of the currency in which the invoice is made out. 

“It is proper that the oath to foreigners should be 
administered to them, not only in their own language, 
so that they may fully understand the nature and im¬ 
port of it, but also in the form practised in their own 
country, which would probably be considered by them 
as more solemn and of a more binding nature than if 
administered in a form to which they have not been 
accustomed. 

“ The consuls and commercial agents will either make 
their certificate upon the invoice itself, or give such 
details where it is attached as a separate document, as 
to the jiames of the shippers, consignees, vessels and 
captains, the nature of the merchandise, and the total 
amount, as will fully identify the invoice annexed, in¬ 
stead of giving, as heretofore, their certificates in such 
general terms as to admit of the deception, which the 
Department is informed has been practised, of substi¬ 
tuting another invoice in place of the one for which 
the certificate was originally issued. 

“They are also specially enjoined to observe great 
caution in granting certificates, where application shall 
be made for the same, for former shipments which were 
unaccompanied by said certificates, until they are fully 
satisfied by the correctness of the invoices presented 
to them for that purpose, as the very omission of the 
certificates with the invoices at the time of entry is, in 
many cases, presumptive evidence that a fraud was 
intended, if not practised, upon the public revenue. 

“ The consuls abroad, by due attention and vigilance, 
can do much towards checking and preventing the 


123 


numerous frauds which are undoubtedly practised upon 
the revenue, if they will report to the collectors of the 
customs of the United States all those invoices where, 
in their opinion, undervaluation has been made, and by 
otherwise keeping the collectors or this Department 
generally and fully advised on the subject; and they 
are earnestly requested to do so, and to consider it 
one of the most important services which they can 
render in connection with the faithful collection of the 
revenue. 

u An erroneous impression exists with many foreign 
shippers of goods to the United States, that the consuls 
before whom the oath to invoices is either taken or 
verified have no power to examine the details of such 
invoices, but simply to verify the fact of such oath 
being taken before them or by an officer in authority 
known to them as such. 

u For the purpose of carrying out a particular system 
of revenue duties, the government of the United States 
requires that the accuracy of certain invoices should be 
ascertained and verified; and a reasonable time for 
consuls to accomplish that object, by an examination 
of such invoices, cannot be justly denied to them. 
Consuls are not supposed to be practically acquainted 
with the market prices or value of all merchandise 
within their district, or of the precise weights, tares, 
measures, bounties, &c., &c., included therein; but 
experience and inquiry will result in such information 
on these points as will enable them to render efficient 
aid to the revenue officers of the United States by 
promptly informing the Department, as well as the 
collector of the port to which the goods may be des¬ 
tined, of every instance where an exporter persists in 


124 


refusing to correct his invoice, when apprized of its 
defects, and that it will be subject to revision at the 
custom-houses of the United States. 

u In the application of an exclusive system of ad 
valorem duties to the revenue of the United States, the 
Department relies with confidence upon the vigilance 
of consuls, for the detection of any abuses that may be 
committed, or any unfair practices that may be supposed 
to exist, in regard not only to the declaration of the 
original cost or export value of foreign merchandise, 
but in all the charges, discounts, bounties, &c., incident 
to the business of preparing goods for the markets of 
the United States, as well as for their promptness in 
reporting all the particulars to the Department. 

“The board of general appraisers being permanently 
organized at New York, consuls will oblige the Depart¬ 
ment by forwarding to them occasionally (directed to 
the chairman of said board) such price currents, man¬ 
ufacturers’ statements of prices, or merchants’ printed 
circulars or prices, or any other general information as 
may be within their reach, and that they may consider 
useful to the said general appraisers in the discharge of 
their duties. 

“The attention of consuls is also directed to the 8th 
and 11th sections of the act of Congress of the 1st 
March, 1823, in which it will be seen that a consular 
certificate is required in all cases of invoices of goods 
exported by the manufacturers thereof, in whole or in 
part for their account, notwithstanding another owner 
in part may reside in the United States. This provision 
of the law of 1823, the Department has reason to believe, 
has been hitherto overlooked in many instances. 

“If a consul ascertains and has reliable evidence of 


125 


the falsity of an oath, either administered by him or 
by a local magistrate whose certificate he has authen¬ 
ticated, he should notify the Department, which will 
transmit to him the original invoice and oath, to be used 
if deemed expedient in a prosecution for perjury. 

“With a view of guarding the customs revenue of 
the United States from attempted frauds, this Depart¬ 
ment is desirous of procuring authentic information on 
various points connected with the cost, charges, and 
the circumstances attending the purchase and shipment 
of foreign merchandise in the countries of its produc¬ 
tion or ports of shipment, for the information of the 
collectors and appraisers at the different ports of entry, 
and to assist them in levying the duties with uniformity 
and correctness. Consuls are therefore requested to 
furnish the Department quarterly with replies in detail 
to the following queries, accompanied by such remarks 
and explanations as they think will be necessary or 
useful; and they will please consider them as applying 
not only to the trade of the place of their actual resi¬ 
dence, but also to the neighboring country or towns 
with which it may have a regular and constant business 
connection, or through which their merchandise may 
be shipped to the United States: 

“First. What are the usual terms on which merch¬ 
andise is bought and sold, whether for cash or on 
credit; and what, if any, are the usual discounts al¬ 
lowed, either from custom or in consideration of cash 
being paid, or from any other cause, and if such dis¬ 
counts are uniform, or if they vary in the same descrip¬ 
tion of goods, and if they are different on different 
descriptions of merchandise ? 

u State also, if such discounts are considered as a 


126 


bonus or gratuity from the seller to the buyer, and 
usually retained by the latter for his own benefit, even 
when he purchases and ships the merchandise under 
orders for account of others ? 

“ Second. On what articles shipped to foreign coun¬ 
tries are bounties allowed; what are the rates of such 
bounties, and state how they are calculated, whether 
on the weight, measure, price, or value, and the respec¬ 
tive rates; on what principle, and for what reason, and 
under what circumstances, are such bounties allowed, 
and are they similar in amount when the articles are 
exported by national vessels and by foreign vessels, 
and if there is any difference, please state it ? 

u Third. What is the customary charge of commis¬ 
sions for purchasing and shipping goods, and if it is 
different on different descriptions of merchandise, 
please give the needful details ? 

u Fourth. What is the usual brokerage on the sale or 
purchase of merchandise, and is it paid by the buyer 
or seller, or sometimes by one and sometimes by the 
other, accordingly as the broker may be employed to 
buy or sell, or do both buyer and seller always pay a 
brokerage ? 

u Fifth. What are the usual and customary expenses 
attending the purchase and shipment, one or both, of 
merchandise at the port of the consul’s official residence, 
specifying them in detail, and including not only com¬ 
missions and brokerage already alluded to, but also 
export duty, dock, trade, or city dues, lighterage, port¬ 
erage, labor, cost of packages, covering or embaling, 
cooperage, gauging, weighing, wharfage, and local im¬ 
posts or taxes of any kind, &c., and whether any, and 
which of the above, or any other items, are usually in- 


127 


eluded in the selling price of the article, or if they 
usually form items of separate charge to be paid by 
the purchaser or shipper? 

u Sixth. If goods produced or manufactured in the 
interior, and purchased there for account of foreigners, 
or by residents for shipment to foreign countries, are 
usually exported through the port of the consul, or if 
thus produced, manufactured, or purchased in some 
neighboring nation which may have no seaports of its 
own, and are usually or occasionally shipped through 
said port, what are the customary expenses attending 
their transportation from such interior places of pro¬ 
duce or manufacture to such port, including all transit 
or export or import frontier duty, and every other 
charge made up to the time of their arrival at said port 
from the interior, besides the ordinary expenses attend¬ 
ing their shipment at such port ? 

u If there be any other points connected with the 
subject which are not embraced in the preceding in¬ 
quiries, and which may be thought useful or accept¬ 
able, consuls are requested to include them in their re¬ 
plies, and to accompany the latter with all the requisite 
details, together with any printed or other documents 
which they may think will be desirable for the Depart¬ 
ment to possess. 

u They are also particularly and specially requested 
to keep the Department regularly and fully advised of 
the course and progress of trade from their several 
ports to the United States, advising it, at all times, of 
any actual or attempted frauds upon the revenue of 
the United States which may come under their obser¬ 
vation, or of which they may obtain any knowledge, 
and the mode in which such frauds are or can be car- 


128 


ried into effect, exercising a due watchfulness, so far 
as in their power to do so, on all shipments of foreign 
merchandise from their several ports to the United 
States. 

u Numerous applications are constantly made to the 
Department for permission to enter merchandise where 
the invoices are not accompanied by the needful consu¬ 
lar certificates in the cases where such certificates are 
by law required. The Department has heretofore acted 
with great leniency and indulgence in such cases, but 
experience has shown the necessity for a more rigid 
course in future, which course will be pursued after a 
reasonable delay; and in all cases where such consular 
certificates should accompany the invoices, any penalty 
which may be incurred for want of them will be regu¬ 
larly enforced, and consuls will please take the needful 
steps for making this determination of the Department 
generally known at their respective ports. 

u There are many staple articles of foreign produc¬ 
tion having a regular and very large consumption in 
the United States, the prices of which abroad are not 
subject to any sudden or large fluctuations, but which, 
when they do vary in price, do so gradually, and to a 
limited extent. 

u It will be very desirable for the Department to have 
regular advices, particularly in regard to such descrip¬ 
tion of goods, and such other information on prices of 
merchandise generally as may be useful in making a 
just estimate of the cost of foreign goods for the pur¬ 
pose of levying the duties. 

“ Consuls are requested to report monthly to the 
Treasury Department, the rates of exchange prevail¬ 
ing between the ports or places at which they re- 


129 


side, and the following places, viz: London, Paris, 
Amsterdam, Hamburg, New York, and other principal 
American ports having commercial relations with such 
consular ports. 

“ JAMES GUTHRIE, 

“Secretary of the Treasury” 

FORMS REFERRED TO IN THE FOREGOING. 

Foreign owner's oath where goods, wares , or merchandise have been actually 
purchased. 

I, A B, do solemnly and truly swear, that the goods, 
wares, or merchandise described in the invoice now 
produced, and hereunto annexed, were actually pur¬ 
chased for my account, or for account of myself and 
partners in the said purchase; and that said invoice 
contains a true and faithful account of the actual cost 
thereof, and of all charges thereon; and that no dis¬ 
counts, bounties, or drawbacks are contained in the 
said invoice but such as have been actually allowed on 
the same. 

(Signed) A B. 

Sworn to and subscribed before me at -, the 

-day of-, A. D. 18—, and of the inde¬ 
pendence of the United States of America the--. 

Foreign manufacturer or owner's oath in cases where goods, icares, or merchandise 
have not been actually purchased. 

I, A B, of-, do solemnly and truly swear, that 

the invoice now produced, and hereunto annexed, con¬ 
tains a true and faithful account of the goods, wares, 
or merchandise therein described, at their market value 

at - at the time the same were (procured or 

manufactured, as the case may be), and of all charges 
17 








130 


thereon; and that the said invoice contains no dis¬ 
counts, bounties, or drawbacks but such as have been 
actually allowed. 

(Signed) A B. 

Sworn to and subscribed before me at-, the 

- day of -, A. D. 18—, and of the inde¬ 
pendence of the United States of America the-. 

[Note. —In all cases where the foregoing oaths are 
not taken before the United States consul, but before 
some public officer duly authorized to administer oaths 
in the country where the goods shall have been pur¬ 
chased, the official certificate of such officer must be 
authenticated by a consular or commercial agent of 
the United States.] 

(Signed) C. D. 

Form, of consul,ar certificate of the value of currency. 

I, A B, consul of the United States of America, do 
hereby certify, that the true value of the currency of 

the Kingdom of-, in which currency the annexed 

invoice of merchandise is made out, is-cents, esti¬ 

mated in Spanish or American dollars. 

(Signed) A B. 

CHAPTER XXI. 

DUTIES OF CONSULS IN RESPECT TO THE APPOINTMENT OF CONSULAR 

AGENTS. 

302. Where there are several seaports in consular 
districts, to which American vessels resort, or places 
where American interests are concerned, it is the duty 
of the consuls to recommend some fit persons to be 


% 








131 


consular agents in such ports or places, who shall cor¬ 
respond with, and make their returns to, the consuls 
appointing them, for transmission with their quarterly 
returns to this Department. 

303. In recommending the establishment or continu¬ 
ance of a consular agency, the consul will state the 
reasons why the interests of the United States require 
such an agency. 

304. In no case will a consul authorize any person to 
act as a consular agent, vice consul, or deputy consul, 
until the appointment has received the approval of this 
Department. When the consul has received notice of 
such approval, he will inform the individual of his 
appointment, and furnish him with the necessary au¬ 
thority to act officially, together with instructions for 
his guidance, conformable to those under which he 
himself is acting. In all cases, consuls will be held 
personally responsible for the official acts of their 
respective agents. 

305. The term employed by this Department to des¬ 
ignate a person authorized by a consul to act as his 
substitute on the spot, is “deputy;” the term used to 
indicate the person employed to fill the place tempor¬ 
arily in his absence, is “vice consul;’ ’and the name of 
“consular agent” is applied to those consular officers 
employed in outposts within a consular district. 

306. Under the provisions of the act to remodel the 
diplomatic and consular systems of the United States, 
no other than citizens of the United States should be 
employed either as vice consuls or consular agents, or 
as clerks in the offices of either, and have access to the 
archives therein deposited. 1 

1 Session Acts 1854-5, p 623. 


# 


132 


307. Consuls will, accordingly, where it is practi¬ 
cable, make the changes thus required, and receive into 
their service consular clerks who owe allegiance to this 
government. 

308. Inconveniences may result from this provision 
of law where the English language is not that of the 
country in which the consulate is situated, but if con¬ 
suls are not acquainted with such language at the time 
of receiving their appointments, it is expected that 
they will soon acquire a sufficient knowledge of it for 
the management of their official business. Wherever 
the consulate is situated, most of the business will be 
conducted in English, and with citizens of the United 
States. Moreover, consuls will find in most foreign 
countries, young Americans desirous, perhaps, of such 
employment as they can afford them, and in all respects 
capable of performing the duties required to their 
satisfaction. 

309. There are many of our citizens, young men, at 
home and abroad, who are anxious of acquiring a 
knowledge of one or another of the continental lan¬ 
guages of Europe—a knowledge which, in after years, 
would be valuable to the government and to the peo¬ 
ple. And it is recommended to United States consuls 
to procure such, as assistants, in the confident belief 
that they will be found equally effective and more 
trustworthy. Should circumstances prevent a strict 
compliance with this provision of law, consuls will at 
once report the fact to this Department, and explain the 
reasons thereof. 

310. The commanders of our mercantile marine, the 
sailors by whom it is manned, as well as other citizens 
having business with United States consulates, will find 


% 


133 


it more agreeable to transact it with subordinates who 
are their own countrymen, than with foreigners, differ¬ 
ing from them as much in manners as in language. 

311. At the close of every year, the consul will 
transmit to this Department, according to the form 
(No. 14) hereto annexed, a list of all persons who may 
be acting within his consular district and under his 
jurisdiction, either as deputy or vice consuls, consular 
agents, clerks, or in any other similar capacity, staling 
in such returns the name of the individuals, their place 
of birth, the country to which they owe allegiance, 
their rank, date of nomination, and the date of the 
approval thereof by this Department. 

CHAPTER XXII. 

DUTIES OF COMMERCIAL AGENTS.- 

312. The laws of the United States do not define 
the difference between a consul, vice consul, commercial 
and consular agent. The last term is employed by 
some writers as the generic designation of the whole 
class of consular officers; but according to the usage of 
this government, it has a much narrower signification. 

313. In the infancy of this government, there were 
only consuls and vice consuls, commissioned by the 
President, after having been nominated to and con¬ 
firmed by the Senate; but the act of March 1, in the 
section where it speaks of “vice consuls” and “consu¬ 
lar agents,” seems to regard them as the subordinates of 
cousuls, and not requiring nomination to the Senate. 
This is also in accordance with the usage of the gov¬ 
ernment. 


134 


314. The act assumes, that a commercial agent, 
another description of consular functionary, has the 
same relation to the laws of the United States as a 
“consul;” and, in assigning “ commercial agents” to the 
colonial ports of the Netherlands, it recognises the 
existing usage of applying this designation to consular 
officers appointed to countries where no formal recog¬ 
nition of them, by exequatur , can be demanded or 
obtained. 1 

315. Commercial agents are first mentioned in the 
act of February 28, 1803, 2 at which time we had 
“ commercial agents” having in fact consular commis¬ 
sions in French ports. The title of general commer¬ 
cial agent was first given on the 1st of June, 1801, 
to the person who took charge of the United States 
consulate at San Domingo, then a dependency of France. 
The change in the title was understood at the time as 
having no effect either on the functions or advantages 
attached to the commission. Its object was merely to 
conform to the language of the convention which had 
recently been concluded between the United States and 
the French Republic, to the government of which the 
title of consul, when applied to a foreign officer, 3 was 
at that time understood to be distasteful. “ Agents” 
holding certificates of appointment from the Secretary 
of State have been appointed in various foreign coun¬ 
tries, with the titles of “ agents,” “commercial agents,” 
“ agents for commerce,” and “ consular commercial 
agents,” and “agents of commerce and statistics.” 
Some of these titles are not found in any law or treaty 
of the United States. Their appointment remains un- 

1 Opinion of Attorney General, June 2, 1855. 2 ft Statutes at Large, 203. 

| 3 Instructions of Mr. Madison to Mr. Lear, June 1, 1801. 


135 


ehangeably one of the organic powers of the Execu¬ 
tive, derived from the Constitution, and not from an 
act of Congress. Like other executive officers con¬ 
nected with this Department, they are amenable to it, 
and subject to regulations issued from it. 1 

316. The official duties of United States commercial 
agents resemble, in most respects, those of United 
States consuls. Similar instructions are given to both, 
subject to such modifications as are rendered necessary 
by the local laws or the customs of the place where 
these officers respectively reside. 

317. Commercial agents are not, like consuls, appoint¬ 
ed by the President by and with the advice and con¬ 
sent of the Senate, nor do they receive a commission 
bearing the seal of the United States. They are sim¬ 
ply executive agents sent abroad for the promotion 
and advancement of commercial interests, selected by 
this Department, corresponding with, instructed and 
controlled by it, and receive a certificate of appoint¬ 
ment bearing the seal of the Department. Their 
recognition by the authorities of the place where they 
reside, although always important, as affording facilities 
in the performance of their duties, is not always neces¬ 
sary. In some instances these agencies are conferred 
upon persons who are directed to keep secret the trust 
confided to them. Appointments of this character do 
not necessarily require a recognition on the part of 
the government of the country, or of the authorities of 
the place whither they are to proceed. Commercial 
agents are sometimes appointed, rather than consuls, 
for the sole purpose of avoiding the necessity of re- 


Opinion of Attorney General, June 2,1855. 


136 


cognising an authority, de facto , by requesting an exe¬ 
quatur, as no application is made by the government 
for exequaturs for commercial agents. 

318. Commercial agents can perform no official or 
consular acts which are forbidden, or are not tolerated, 
by the government of the place at which they are 
appointed, and which have reference solely to that 
government and the citizens or subjects owing it 
allegiance. 1 

CHAPTER XXIII. 

CONSULS GENERAL. 

319. Consuls general of the United States will observe 
the foregoing General Instructions, so far as they are 
applicable to them. 

320. Inasmuch, however, as the duties which they are 
required to perform are often highly important, and 
involve much responsibility, they will receive, from 
time to time, from this Department, as occasion re¬ 
quires, specific instructions for their information and 
guidance. 

321. United States consuls residing within the juris¬ 
diction of a consul general, will continue, as heretofore, 
to correspond directly with this Department, and trans¬ 
mit their reports to it without the intervention of the 
consul general. 

322. Consuls general will, however, whenever re¬ 
quired, give their advice and counsel to consuls in 
respect to all matters by which the interests of their 
own government, or of their countrymen, may be 
promoted. 

1 Ms. Instructions, September 6, 1854. 


137 


323. But whenever it becomes necessary for a consul 
in the discharge of his official functions to have re¬ 
course to the chief authority of the country or depend¬ 
ency where there is a consul general whose residence 
is at the seat of government, consuls will always em¬ 
ploy the intervention of the consul general, who will 
refer the subject which has been brought to his atten¬ 
tion to the proper authority, accompanying it with 
such observations as the case may require. 


CHAPTER XXIV. 

FEES OF UNITED STATES CONSULS. 

324. It is provided by the act of March 1, 1855, 
that* it shall be the duty of consuls and commercial 
agents to charge the following fees for performing the 
services specified, for which, under the penalty of be¬ 
ing removed from office, 1 (consuls and commercial 
agents are likewise indictable u for all malversation 
and corrupt conduct in office,” and also subject to suit 
on their official bond,) they shall account to the gov¬ 
ernment at the expiration of every three months, and 
hold the proceeds subject to its drafts. 

For receiving and delivering ships’ papers, half cent 
on every ton, registered measurement, of the vessel for 
which the service is performed. 

For every seaman who may be discharged or ship¬ 
ped at the consulate or commercial agency, or in the 
port in which either is located, one dollar; which shall 
be paid by the master of the vessel. 

1 See Opinion of Attorney General, appendix, pp. 88, 89,90, and 96. 

18 


138 


For every other certificate, except passports—the 
signiug and verification of which shall be free—two 
dollars. 1 They are also empowered, under certain cir¬ 
cumstances, to place their official seals on all or any 
portions of the property of American citizens dying 
within their consulates or commercial agencies, and to 
break and remove the same when required by the 
agent or trustee, and not otherwise; they, the said 
consuls or commercial agents, receiving therefor two 
dollars for each seal, which, like all other fees for con¬ 
sular service , including all charges for extension of 
protest, as also such commissions as are allowed by 
existing laws on settlement of estates of American citi¬ 
zens by consuls and commercial agents, shall be reported 
to the Treasury Department, and held subject to its 
order. 

325. The commission allowed by existing laws on 
settlement of estates of American citizens by consuls 
and commercial agents, viz: for taking into possession, 
inventorying, selling, and finally settling, and paying 
or transmitting, according to law, the balance due, the 
personal estate of any citizen who shall die within the 
limits of his consulate, is five per centum on the gross 
amount of such estate. 

326. If part of such estate shall be delivered over 
before a final settlement, two and a half per centum is 
allowed on the part so delivered as shall not be in 
money, and five per centum on the gross amount of the 
residue. 

327. By the act of March 2d, 1799, it is made law¬ 
ful “for the consuls or agents of the United States, re¬ 
siding at foreign ports, to demand twenty-five cents 

1 Sess. Acts 1854-’55, page 624. 


139 


for administering an oath or affirmation;” 1 to which 
also must be added the fee of two dollars for a cer¬ 
tificate, when required. 

328. The law of March 1, 1855, requires that all 
charges for extension of protest shall be reported to 
the Treasury Department, and held subject to its 
order, but does not specify the amount which consuls 
and commercial agents are authorized to charge for 
such service. 

329. For the purpose of securing uniformity in this 
and other charges, and also that consuls and commer¬ 
cial agents may avoid all contentions upon the subject of 
fees with their countrymen, which tend so much to de¬ 
grade our national character abroad, they are instructed 
to charge one dollar for noting a protest, which, as well 
as the extension thereof, may be regarded under the 
act of 1st March, 1855, “as a consular act.” 

330. For extending a protest, two dollars; and if it 
exceeds two hundred words, for every additional one 
hundred words, one dollar; provided the protest be 
noted or extended by a consul or commercial agent. 

331. For the recording of a document, fifty cents; 
and if it exceed one hundred words, for every addi¬ 
tional hundred words, ten cents. 

332. The making of copies, is a clerical, not a “con¬ 
sular service,” and whatever may be paid for copies 
belongs to the consul, and therefore only the fee for 
the consular certificates upon such copies goes to ac¬ 
count of the government. 2 

333. The fee which consuls and commercial agents 
shall charge for an order for a survey, for the arrest 

1 i Statutes at Large, p. 692. 

2 Opinion of the Attorney General of June 2, appendix, p. 99 


140 


of a seaman, and for the release of a seaman, is one 
dollar. 

334. The above mentioned fees are all to go to the 
account of the government, with the exception of 
copies of documents noted in section three hundred 
and thirty-two. 

335. The following table of fees, prepared by this 
Department at the request of United States consuls and 
others is chiefly in respect to matters in which the 
consul’s interposition is voluntary, and is given only 
when required by the parties interested. Consuls are 
requested to observe, for the present, the rates named 
in the scale; and to suggest for the consideration of 
the Department such modifications as they may deem 
expedient: 

For all copies of documents, ten cents per hundred 
words. 

For drawing a power of attorney, five dollars. 

For preparing a bottomry or arbitration bond, five 
dollars. 

For attendance at a shipwreck, or for the purpose of 
assisting a ship in distress, or of saving wrecked goods, 
or property, over and above travelling expenses, a per 
diem of five dollars, whenever the consul’s interpo¬ 
sition is required by the parties interested. 

For attending an appraisement where the goods or 
effects are under one thousand dollars in value, three 
dollars. 

For attending valuation of goods, of one thousand 
dollars and upwards in value, for every day’s attend¬ 
ance, during which the valuation continues, five dollars. 

For attending sale of goods, if the purchase money 
is under one thousand dollars, three dollars. 


141 


For attending sale of goods, if the purchase money 
is one thousand dollars or upwards, for every day 
during which the sale continues, five dollars. 

For preparing a bill of health, two dollars. 

For making a will, if the property disposed of is 
less than one thousand dollars, five dollars. 

For preparing a will, in which the property exceeds 
one thousand dollars, ten dollars. 

336. For other services, not herein specified, the 
consul is authorized to charge the usual rates allowed 
to notaries in the same place for the same services. 

337. All fees collected for the American government 
must be in American coin or its representative value 
in exchange. 

338. Consuls and commercial agents are instructed 
to report immediately to this Department the fees 
usually charged by themselves for the services above 
specified, and all others of a notarial or consular char¬ 
acter, and also the charges of notaries in their respec¬ 
tive consular districts. 

339. Those United States consuls and commercial 
agents for whom no provision is made by the act of 
March 1, 1855, remodelling the diplomatic and con¬ 
sular systems of the United States, will, until otherwise 
individually instructed, continue to discharge their 
official functions. They will charge for consular ser¬ 
vices as prescribed in the foregoing sections of this 
chapter, and make their returns to this Department , 
instead of the Treasury , in the same manner as hereto¬ 
fore, except that they will report quarterly, instead of 
semi-annually, according to the forms now prescribed. 

340. In short, consular officers, of whatever denomi¬ 
nation, for whom salaries are provided by the act, are 


142 


to pay over the consular fees which they receive; and 
all other consular officers, not thus provided for, have 
the right to retain all the lawful fees which the several 
acts of Congress, including that of March 1st, and the 
regulations of the Department, allow them to demand. 1 

341. Accordingly, United States consuls will, as 
heretofore, make the best arrangements which they 
can, with proper regard for the interests of the public 
service, by the appointment of consular agents, subject 
to the approval of this Department, and holding them¬ 
selves individually responsible for the official acts of 
such agents, at out-posts or places where the conve¬ 
nience and economy of all parties may be consulted 
who have business with a United States consular agency. 
Such agents will collect the fees herein prescribed, 
and retain the whole, or such part thereof, as compen¬ 
sation for their services, as may be agreed on between 
themselves and the United States consuls by whom 
they are appointed; and they will transact the consular 
business under the direction of the consul. 


CHAPTER XXY. 

ATTENDANCE OF CONSULS, ETC., AS WITNESSES IN COURT. 

342. By the second article of the consular conven¬ 
tion between the United States and France, of the 23d 
February, 1853, it is stipulated that “they shall never 
be compelled to appear as witnesses before the courts. 
When any declaration for judicial purposes, or depo¬ 
sition, is to be received from them in the administration 
of justice, they shall be invited in writing to appear 

1 Opinion of the Attorney General, appendix, p, 105. 


143 


in court, and if unable to do so, their testimony shall 
be requested in writing, or be taken orally at their 
dwellings.” 

343. By provisions in some of our treaties with 
other powers the above privilege may be claimed by 
them for their consuls resident in the United States. 

344. Though the United States consuls in France 
are not subject to compulsory process for the purpose 
of being brought into court as witnesses, yet it is their 
duty, on invitation, to appear and give their testimony 
unless necessarily prevented. They have no right on 
account of their official position, or disinclination, or 
personal inconvenience to refuse compliance with such 
invitation. Business engagements will not be regarded 
as a valid excuse, unless they be of such a character 
that interruption would necessarily result in a serious 
injury to our government or citizens. 

345. If the testimony of our consuls is required for 
the proper administration of justice in a foreign 
country, it ought to be made available, except under 
extraordinary circumstances, for that purpose ,and this 
government expects they will be careful to throw no 
obstacles in the way of obtaining it. 

346. Should an American consul, to whom the ex¬ 
emption from compulsory process is given by the con¬ 
sular treaty above referred to, or any other treaty, 
refuse, for what he may deem a good cause, to comply 
with the invitation to appear in court and give testi¬ 
mony, he is directed forthwith to communicate the 
fact of his refusal to this government, and to state 
clearly and fully the reasons for such refusal. A 
refusal without good cause therefor will be regarded 


144 


as an act of disrespect towards the government within 
whose jurisdiction he resides, and a good ground for 
his removal. 


CHAPTER XXVI. 


FOEMS OF OFFICIAL DOCUMENTS. 


347. United States consuls, in the discharge of their 
official duties, will carefully observe the following 
forms, prscribed by the General Instructions: 

Official Bond. 

Kind, size, etc., of paper for Des¬ 
patches. 

Endorsement of a Despatch. 

4. Endorsement of an Enclosure. 
Quarterly Returns. 

Quarterly Statement of Fees. 

Seamen’s Relief. 

Record of Treasury Fees. 

Form of an Account. 

Certificate to accompany Quarterly 
Account. 

Form No. 11. Certificate to accompany First Account. 
Form No. 12. Joint Certificate of outgoing and in¬ 
coming Consuls. 

Consular Passport. 

Names of persons employed by United 
States Consuls. 

Certificate to be used in Prosecutions. 
Certificate of the Rate of Exchange. 
Form of a Draft. 

Note. —For forms relating to invoices and the cur¬ 
rency, see chap, xx, pp. 129, 130. 


No. 

1 . 

No. 

2. 

No. 

3. 

No. 

4. 

No. 

5. 

No. 

6. 

No. 

7. 

No. 

8. 

No. 

9. 

No. 

10. 

No. 

11. 

No. 

12. 

No. 

13. 

No. 

14. 

No. 

15. 

No. 

16. 

No. 

17. 


145 


Form No. 1. 

Official Bonds. 

Know all men by these presents, That we,-, 

are held and firmly bound, to the United States of 

America, in the sum of-thousand dollars, money of 

the said United States, to the payment whereof we bind 
ourselves, jointly and severally, our joint and several 
heirs, executors, and administrators. Witness our 

hands and seals, this-day of- , 185 . 

The condition of the above obligation is such , That 

if the above bounden-, appointed- 

of the United States,-, shall truly 

and faithfully discharge the duties of his said office, 
according to law, and also shall truly account for all 
fees, moneys, goods, and effects, which may come into 
his possession by virtue of the laws of the United 
States, or of his said office, then the above obligation 
to be void; otherwise, to remain in full force. 

Signed , sealed , and delivered , ) 
in the presence of ) 

Jgf 35 The following instructions must be particularly 
observed and complied with: 

1st. The Christian names must he written in the body of 
the bond in full, and so signed to the bond. 

2d. A seal of wax or wafer to be attached to each sig¬ 
nature. 

3d. Each signature must be made in the presence of two 
persons, who must sign their names as witnesses. 

4th. The United States attorney of the district in which 
the sureties reside must certify that they are sufficient 
to pay the penalty of the bond, and are citizens of 
the United States. 

5th. Bond to be dated. 

19 









146 


Form No. 2. 


Kind, etc., size of paper for Despatches and Enclosures . 


Cap paper, wide lines, with a margin one inch wide 
on each side of the paper. Marginal notes, indicating 
the subject-matter of the despatch, should invariably 
be placed upon the external edge of the paper; other¬ 
wise, when a series of despatches is bound, the inner 
references would be useless. 










Form No. 5. 

Return and statement of fees received at the United States Consulate at - from the 

the -, inclusive. 


147 


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Note.— United States consuls are specially instructed to state in additional columns to be prepared by them, the amount of anj and every fee received by them 
for services other than those above specified. This form is to be followed by U. S. consuls residing at ports, and be transmitted quarterly to the Departfnent ot state. 





































































Statement of relief afforded destitute American seamen at the consulate of the United States at 

for the quarter ending -, 185 —. 


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I, A B, do certify that the above and foregoing account contains a true, correct, and full statement of all the money received at this 

consulate for the quarter ending on the-day of -, A. D 18 —, and which I am authorized to charge and receive under said act, 

except seamen’s wages. 













153 


Form No. 10. 

Form of a certificate to be executed and to accompany each 
quarterly account of the consuls and commercial agents. 

- of the United States ) 

at 5 (Date) 

I certify that I have not been absent from the dis¬ 
trict of my consulate (or commercial agency, as the 
case may be) for a longer period than ten days, within 
the quarter embraced in the above and foregoing ac¬ 
count. 

Note. —If absent more than ten days, the consul or 
commercial agent should state the day his absence 
commenced and the day it ceased, and deduct accord- 
ingly. 


Form No. 11. 

Form of a certificate to be executed by each consul or commer¬ 
cial agent , and to accompany his first account. 

-of the United States ) 

at \ (Date ° 

I, A. B., (consul or commercial agent, as the case 
may be,) do certify that I entered upon the duties of 

this office on the-day of-, 18—, and 

that I have since then continued to discharge the 
duties of said office uninterruptedly to the present 
time. 


20 






154 


Form No. 12 . 


Form of a certificate to be executed jointly by the outgoing 
and by the incoming consuls or commercial agents. 


at 


of the United States ) 


(Date.) 


We certify that on this the-day of-, 

18—, the services of A B ceased, and he is entitled 
to his salary, including said day; and that the services 
of C D commenced the day following, he having re¬ 
ceived the archives, as specified in the 23d section of 
the act of 1st March, 1855. 


Form No. 13. 

Form of a Consular Passport. 
consulate of the united states. 

To all to whom these presents shall come, greeting: 

I, the undersigned consul of the Uni¬ 
ted States for the port of-, hereby 

request all whom it may concern, to per¬ 
mit safely and freely to pass, -, a 

citizen of the United States, and in case 
of need give him all lawful aid and pro¬ 
tection. 

Given under my hand and the seal of 

the consulate, at -, this 

-day of-, A. D. 18—, 

and of the independence of the 
United States the 


Age, 

Stature, 

Forehead, 

Eyes, 

N 086 , 

Mouth, 

Chin, 

Hair, 

Complexion, 

Face, 


year. 


[l. a] 










155 


Form No. 14. 

Names of persons employed by U. S. consul at 


Name. 

Place of 
birth. 

Of w hat coun¬ 
try a citizen 
or subject. 

Rank. 

Date of 
nomination. 







Date of 
approval. 


Form No. 15. 

Certificate to be used in Prosecutions. 

United States Consulate, 

-, 185 . 

Sir: A penalty is supposed to have been incurred 
by [ James Johnson,] of [New Orleans, commander of 
the brig General Jackson, of that place,] for a violation 

of the-section of the act of-, 184 , (—U. S. 

Statutes at Large, p. —,) for [refusing to deposit the 
papers of the said brig with such consul, ] and for which 
he is liable to be prosecuted in my name, as consul of 
the United States for this port. 

You, or the proper law officer of the United States, 
are authorized, at their proper costs and charges, to 
institute in my name a suit to recover the same for 
their use and benefit, and the same to control, and to 
discharge, according to law, in such court having juris¬ 
diction thereof, as you or he shall deem proper. 

Witness my hand and consular seal. 

s '] u. S. Consul. 

Hon.-, 


Secretary of State. 




















156 


Form No. 16. 

Form of voucher as to difference in the rates of exchange 
between the several foreign ports and countries and the 
United States. 

(Name of place and date.) 

I, -, being a banker, (broker, or merchant, as 

the case may be,) and doing business as such at the 
place aforesaid, do hereby certify, that I am acquainted 
with- the rate of exchange at this day between said 
place and the United States of America; and a bill of 
exchange or draft drawn here, payable at the Treasury 
of the United States, cannot be sold for a greater sum 

than-cents upon the dollar upon the face of said 

draft. 

A B, 

Banker (Broker or Merchant.') 

(Name of place and date.) 

1,-, (the official drawing the bill or draft,) 

do hereby certify, that a bill of exchange or draft, 
payable at the Treasury of the United States, could 
not be sold for ready payment on this day, at this 

place, for more than-cents upon the dollar of the 

face of said draft or bill, and that is the value of the 
difference of exchange between the two countries at 
this date. 

(To be signed by the consul or agent in his official capacity.) 


/ 






157 


Form No. 17. 

Form of a Draft. 

In drawing upon the Department of State, consuls 
and commercial agents will always insert in their drafts 
the words “acceptance waived.” 

Consulate of the U. S. A., 

g 

__ _, (day)—(month)—(year.) 

Fifteen days after sight (acceptance waived) of this 
my First of Exchange, (second and third of the same 

tenor and date unpaid,) pay-, or order, 

- too dollars, the amount of disbursements at 

this consulate on account of-for the quarter 

ending-as per advice. 

A B, 

Consul U. S. A. 

Honorable-, 

Secretary of State of the United States, 

Washington, D. C. 

Note.— The quarter is reckoned at the Treasury from the 
commencement of the fiscal year, which is on the 1st of July. 


CHAPTER XXVII. 

OFFICIAL INTERCOURSE OF UNITED STATES CONSULS WITH OFFICERS 
OF THE NAVY. 

348. To promote harmony and concert of action 
between the commanders of our ships of war and con¬ 
suls of the United States residing in foreign ports, the 
following regulations have heretofore been established, 
by direction of the President of the United States, 
and promulgated for the government of the officers 
concerned: 












158 


1. Upon entering a foreign port where a consul of 
the United States resides, the commander of our ships 
of war shall send a boat on shore with an officer on 
board, who shall visit the consul, and tender to him a 
passage to the ship of war. 

2. Where a consul general resides, it shall be the 
duty of the commander of any of our ships of war 
(commanders of squadrons excepted) to visit the 
consul general, and offer him a passage to the ship of 
war. 

3. The commander of a squadron will send a boat 
on shore, as prescribed in the first regulation, tendering 
to the consul or consul general a passage on board to 
the flag ship of war. 

349. According to the first, a consul of the United 
States residing at a foreign port which is visited by a 
ship of war of the United States, is to receive the first 
visit from such ship, in the person of an officer belong¬ 
ing to it, deputed and sent for that purpose by the 
commander; and this officer is then to tender to the 
consul a passage to the said ship. In such cases the 
consul will accordingly avail himself of the proposed 
‘accommodation whenever occasion may require, as well 
for the purpose of making the first visit to the com¬ 
manding officer of the ship in question, (this being a 
mark of courtesy due to the commission and rank he 
holds in the navy of the United States,) as for that of 
offering to him any services which his official situation 
may enable him to render for the convenience of his 
ship, or those belonging to it; and the consul will ac¬ 
cordingly receive and execute any such commission as 
may be intrusted to him for these ends by the com¬ 
manding officer, as far as this may be compatible with 
his sense of public duty. 


159 


350. According to the second and last, “it shall be 
the duty of the commander of any of our ships of war, 
(commanders of squadrons excepted,) to visit the con¬ 
sul general, and offer him a passage to the ship of war.” 
The consuls general of the United States, where there 
are such officers, will, accordingly, reciprocate these 
attentions on the part of the commanders of the ships 
of war, or will pay the first honors to the commanding 
officers of squadrons, as the case may be; and they 
will of course employ their good offices, as far as it 
may be useful or proper on their part, to promote the 
interests and convenience of the service in which such 
vessels are engaged. 

351. Consuls will refrain from requesting, except 
through the medium of this Department, the presence 
of United States vessels at the ports in their respective 
consular districts, unless for the protection of the lives 
and property of American citizens, which might be 
endangered by delay. 










































APPENDIX. 


A. —Act ro remodel the Diplomatic and Consular Systems of the United 

States. 

B. —Opinion of the Attorney General on »he Act to remodel the Diplomatic 

and Consular Systems of the United States. 

C. —Opinion of the Attorney General on Consular Marriages. 

D. —Extracts from Acta of Congress relating to Umted States Consuls. 

E. —Index to the several Acta of Congress relating to United States Consuls. 


F.—List of Ministers, Consuls, and other Diplomatic and Commercial Agenta of 
the United States in foreign counti iea. 
































A. 


AN ACT 

TO 

REMODEL THE DIPLOMATIC AND CONSULAR SYSTEMS 

OF THE 

UNITED STATES. 


Be it enacted by the Senate and House of Representa¬ 
tives of the United States of America in Congress assem¬ 
bled, That from and after the thirtieth day of June next 
the President of the United States shall, by and with 
the advice and consent of the Senate, appoint repre¬ 
sentatives of the grade of envoys extraordinary and 
ministers plenipotentiary to the following countries, who 
shall receive an annual compensation for their services 
not exceeding the amount specified herein for each: 

Great Britain, seventeen thousand five hundred dol¬ 
lars. 

France, fifteen thousand dollars. 

Spain, twelve thousand dollars. 

Russia, twelve thousand dollars. 

Austria, twelve thousand dollars. 

Prussia, twelve thousand dollars. 

Switzerland, seven thousand five hundred dollars. 

Rome, seven thousand five hundred dollars. 

Naples, seven thousand five hundred dollars. 

Sardinia, seven thousand five hundred dollars. 

Belgium, seven thousand five hundred dollars. 

Holland, seven thousand five hundred dollars. 

Portugal, seven thousand five hundred dollars. 

Denmark, seven thousand five hundred dollars. 

Sweden, seven thousand five hundred dollars. 





4 


Turkey, nine thousand dollars. 

China, fifteen thousand dollars. 

Brazil, twelve thousand dollars. 

Peru, ten thousand dollars. 

Chili, nine thousand dollars. 

Argentine Republic, seven thousand five hundred 
dollars. 

New Granada, seven thousand five hundred dollars. 
Bolivia, seven thousand five hundred dollars. 
Ecuador, seven thousand five hundred dollars. 
Venezuela, seven thousand five hundred dollars. 
Guatemala, seven thousand five hundred dollars. 
Nicaragua, seven thousand five hundred dollars. 
Mexico, twelve thousand dollars. 

Sec. 2. And be it further enacted , That from and 
after the thirtieth day of June next the President of 
the United States shall, by and with the advice and 
consent of the Senate, appoint secretaries of legation 
to the following countries, who shall receive an annual 
compensation for their services not exceeding the 
amount specified herein for each: 

Great Britain, twenty-five hundred dollars. 

France, twenty-two hundred and fifty dollars. 

Spain, twenty-two hundred and fifty dollars. 

Russia, two thousand dollars. 

Austria, two thousand dollars. 

Prussia, two thousand dollars. 

Switzerland, fifteen hundred dollars. 

Rome, fifteen hundred dollars. 

Naples, fifteen hundred dollars. 

Sardinia, fifteen hundred dollars. 

Belgium, fifteen hundred dollars. 

Holland, fifteen hundred dollars. 




5 


Portugal, fifteen hundred dollars, 

Denmark, fifteen hundred dollars. 

Sweden, fifteen hundred dollars. 

Brazil, two thousand dollars. 

Peru, two thousand dollars. 

Chili, fifteen hundred dollars. 

Argentine Republic, fifteen hundred dollars. 

New Granada, fifteen hundred dollars. 

Bolivia, fifteen hundred dollars. 

Ecuador, fifteen hundred dollars. 

Venezuela, fifteen hundred dollars. 

Guatemala, fifteen hundred dollars. 

Nicaragua, fifteen hundred dollars. 

Mexico, two thousand dollars. 

Sec. 3. And be it further enacted , That from and 
after the thirtieth day of June next the President of 
the United States shall, by and with the advice and 
consent of the Senate, appoint a commissioner to the 
Sandwich Islands, who shall receive an annual compen¬ 
sation for his services of six thousand dollars; an inter¬ 
preter to the mission to China, who shall receive for 
his services two thousand five hundred dollars per 
annum; and a dragoman to the mission to Turkey, who 
shall receive for his services twenty-five hundred dol¬ 
lars per annum. 

Sec. 4 . And be it further enacted , That from and 
after the thirtieth day of June next the President of 
the United States shall, by and with the advice and 
consent of the Senate, appoint consuls for the United 
States, to reside at the following places, who shall re¬ 
ceive during their continuance in office an annual com¬ 
pensation for their services not exceeding the amount 
specified herein for each, and who shall not be per- 


6 


mitted to transact, under the penalty of being recalled 
and fined in a sum not less than two thousand dollars, 
business either in their own name or through the 
agency of others: 


GREAT BRITAIN. 

London, seven thousand five hundred dollars. 
Liverpool, seven thousand five hundred dollars, 
Glasgow, four thousand dollars. 

Dundee, two thousand dollars. 

Newcastle, fifteen hundred dollars. 

Leeds, fifteen hundred dollars. 

Belfast, two thousand dollars. 

IIong-Kong, three thousand dollars. 

Calcutta, three thousand five hundred dollars, 
Halifax, two thousand dollars. 

Melbourne, four thousand dollars. 

Nassau, two thousand dollars. 

Kingston, (Jamaica,) two thousand dollars. 

HOLLAND. 

Rotterdam, two thousand dollars. 

Amsterdam, one thousand dollars. 

PRUSSIA. 

Aix-la-Chapelle, twenty-five hundred dollars. 


FRANCE. 

Paris, five thousand dollars. 

Havre, five thousand dollars. 

Marseilles, two thousand five hundred dollars, 
Bordeaux, two thousand dollars. 

Lyons, one thousand dollars. 


7 


La Rochelle, one thousand dollars. 
Nantes, one thousand dollars. 


SPAIN, 

Cadiz, fifteen hundred dollars. 

Malaga, fifteen hundred dollars. 

St. Jago de Cuba, two thousand dollars. 

Matanzas, three thousand dollars. 

St. Johns, (P. R.,) two thousand dollars. 

Trinidad de Cuba, three thousand dollars, 

Ponce, (P. R.,) fifteen hundred dollars. 

Havana, six thousand dollars. 

PORTUGAL. 

Lisbon, fifteen hundred dollars. 

Funchal, fifteen hundred dollars. 

BELGIUM. 

Antwerp, two thousand five hundred dollars. 

RUSSIA. 

St. Petersburg, two thousand five hundred dollars. 

DENMARK. 

St. Thomas,’four thousand dollars. 

Elsineur, fifteen hundred dollars. 

AUSTRIA. 

Trieste, two thousand dollars. 

Vienna, one thousand dollars. 

SAXONY. 

Leipsic, fifteen hundred dollars. 


8 


BAVARIA. 

Munich, oue thousand dollars. 

HANSEATIC AND FREE CITIES. 

Bremen, two thousand dollars. 
Hamburg, two thousand dollars. 


FRANKFORT-ON-THE-MAINE, 

Including the Grand Duchy of Hesse-Darmstadt, the 
Electorate of Hesse-Cassel, the Duchy of Nassau, and 
the Landgraviate of Hesse-Hombourg, two thousand 
dollars. 

WURTEMBURG. 

Stuttgardt, one thousand dollars, 

BADEN. 

Carlsrue, one thousand dollars. 

SWITZERLAND. 

Basle, fifteen hundred dollars, 

Zurich, fifteen hundred dollars. 

Geneva, fifteen hundred dollars. 

SARDINIA. 

Genoa, one thousand five hundred dollars 

TUSCANY. 

Leghorn, fifteen hundred dollars. 

KINGDOM OF THE TWO SICILIES. 

Naples, fifteen hundred dollars. 

Palermo, fifteen hundred dollars. 

Messina, one thousand dollars. 


9 


TURKISH DOMINIONS. 

Constantinople, two thousand five hundred dollars. 
Smyrna, two thousand dollars. 

Beirut, two thousand dollars. 

Jerusalem, one thousand dollars. 

Alexandria, three thousand five hundred dollars. 

BARB ARY STATES. 

Tangiers, two thousand five hundred dollars. 
Tripoli, two thousand five hundred dollars. 

Tunis, two thousand five hundred dollars. 

CHINA. 

Canton, three thousand dollars. 

Shanghai, three thousand dollars. 

Amoy, twenty-five hundred dollars. 

Fouchow, two thousand five hundred dollars. 
Ningpo, two thousand five hundred dollars. 

JAPAN. 


Sim o da, — 
Hakodadi, 


BORNEO. 


Bruni, 


SANDWICH ISLANDS. 

Honolulu, four thousand dollars. 


1 By the act of 3d March, 1855, making appropriations for the civil 
and diplomatic expenses of government, this salary is fixed at five 
thousand dollars per annum. 

2 * 





10 


HAYTI. 

Port-au-Prince, two thousand dollars. 

City of St. Domingo, fifteen hundred dollars. 

MEXICO. 

Vera Cruz, three thousand five hundred dollars. 
Acapulco, two thousand dollars. 

CENTRAL AMERICA. 

San Juan del Norte, two thousand dollars. 

San Juan del Sur, two thousand dollars. 

* NEW GRANADA. 

Panama, three thousand five hundred dollars. 
Aspinwall, two thousand five hundred dollars. 

VENEZUELA. 

Laguayra, fifteen hundred dollars, 

BRAZIL. 

Rio de Janeiro, six thousand dollars. 

Pernambuco, two thousand dollars. 

ARGENTINE REPUBLIC. 

Buenos Ayres, two thousand dollars. 

PERU. 

Callao, three thousand five hundred dollars. 

CHILI. 

Valparaiso, three thousand dollars. 

Sec. 5. And be it further enacted T That from and 
after the thirtieth day of June next the President of 
the United States shall, by and with the advice and 


11 


consent of the Senate, appoint consuls and commercial 
agents for the United States to reside at the following 
places, who shall receive, during their continuance in 
office, an •annual compensation for their services not 
exceeding the amount specified herein for each, and 
who shall be at liberty to transact business: 

GREAT BRITAIN. 

Southampton, one thousand dollars. 

Bristol, one thousand dollars. 

Leith, one thousand dollars. 

Dublin, one thousand dollars. 

Cork, one thousand dollars. 

Galway, one thousand dollars. 

Bombay, one thousand dollars. 

Singapore, one thousand dollars. 

Gibraltar, seven hundred and fifty dollars. 

Island of Malta, one thousand dollars. 

Cape Town, one thousand dollars. 

Port Louis, one thousand dollars. 

St. John’s, (N. B.,) one thousand dollars. 

Pictou, one thousand dollars. 

Demarara, one thousand dollars. 

Sidney, one thousand dollars. 

Falkland Islands, one thousand dollars. 

Hobart Town, one thousand dollars. 

Bermuda, one thousand dollars. 

Turk’s Island, one thousand dollars. 

Barbadoes, one thousand dollars. 

Island of Trinidad, one thousand dollars. 

St. Helena, one thousand dollars. 

St. Christopher, one thousand dollars. 

Antigua, one thousand dollars. 

Ceylon, one thousand dollars. 


f 


12 


RUSSIA* 

Odessa, fifteen hundred dollars. 

Galatza, one thousand dollars. 

FRANCE. 

Martinique, seven hundred and fifty dollars. 
Miquelon, seven hundred and fifty dollars. 

SPAIN. 

Barcelona, seven hundred and fifty dollars. 

Manilla, seven hundred and fifty dollars. 

PORTUGAL. 

Macao, one thousand dollars. 

Mozambique, seven hundred and fifty dollars. 

Fayal, seven hundred and fifty dollars. 

St. Jago, Cape Yerd, seven hundred and fifty dollars. 

HANOVER AND BRUNSWICK. 

Hanover, five hundred dollars. 

MECKLENBERG-SCHWERIN AND MECKLENBERG-STRELITZ. 

Schwerin, five hundred dollars. 

OLDENBURG. 

Oldenburg, five hundred dollars. 

DANISH DOMINIONS. 

Santa Cruz, seven hundred and fifty dollars. 

SWEDEN AND NORWAY. 

Gothenburg, seven hundred and fifty dollars. 
AUSTRIA. 

Venice, seven hundred and fifty dollars. 




13 


SARDINIA. 

Spezzia, seven hundred and fifty dollars. 

GREECE. 

Athens, one thousand dollars. 

TURKEY. 

Candia, one thousand dollars. 

Cyprus, one thousand dollars. 

IONIAN ISLANDS. 

Zante, one thousand dollars. 

AFRICA. 

Monrovia, one thousand dollars. 
Zanzibar, one thousand dollars. 

NEW ZEALAND. 

Bay Islands, one thousand dollars. 

HAYTI. 

Cape Haytien, one thousand dollars. 
Aux Cayes, five hundred dollars. 

MEXICO. 

Mexico, one thousand dollars. 

Paso del Norte, five hundred dollars. 
Tampico, one thousand dollars. 
Matamoras, one thousand dollars. 
Tabasco, five hundred dollars. 

Mazatlan, five hundred dollars. 
Tehuantepec, one thousand dollars. 
Minatitlan, one thousand dollars. 


14 


CENTRAL AMERICA. 

Omoa and Truxillo, one thousand dollars. 

San Jose, five hundred dollars. 

NEW GRANADA. 

Cartagena, five hundred dollars. 

Sabanillo, five hundred dollars. 

VENEZUELA. 

Ciudad Bolivar, seven hundred and fifty dollars, 
Puerto Cabello, seven hundred and fifty dollars. 
Maracaibo, seven hundred and fifty dollars. 

ECUADOR. 

Guayaquil, seven hundred and fifty dollars. 

BRAZIL. 

Maranham Island, seven hundred and fifty dollars. 
Rio Grande, one thousand dollars. 

Bahia, one thousand dollars. 

Para, one thousand dollars. 

URUGUAY. 

Montevideo, one thousand dollars. 

CHILI. 

Talcahuano, one thousand dollars. 

PERU. 

Paita, five hundred dollars. 

Tumbez, five hundred dollars. 

SANDWICH ISLANDS. 

Lahaina, one thousand dollars. 

Hilo, one thousand dollars. 


15 


navigator’s islands. 

Apia, one thousand dollars. 

SOCIETY ISLANDS. 

Tahiti, one thousand dollars. 

FEJEE ISLANDS. 

Lanthala, one thousand dollars. 

HOLLAND. 

Batavia, one thousand dollars. (Commercial agent.) 

Paramaribo, five hundred dollars. (Commercial 
agent.) 

Padang, five hundred dollars. (Commercial agent.) 

St. Martin, five hundred dollars. (Commercial 
agent. 4 

Curacoa, five hundred dollars. (Commercial agent.) 

Sec. 6 . And be it further enacted , That no envoy 
extraordinary and minister plenipotentiary, commis¬ 
sioner, secretary of legation, dragoman, interpreter, 
consul, or commercial agent, who shall, after the thir¬ 
tieth day of June next, be appointed to any of the 
countries or places herein named, be entitled to com¬ 
pensation until he shall have reached his post and 
entered upon his official duties. 

Sec. 7 . And be it further enacted , That the compensa¬ 
tion of every envoy extraordinary and minister pleni¬ 
potentiary, commissioner, secretary of legation, drago¬ 
man, interpreter, consul, and commercial agent, who 
shall, after the thirtieth day of June next, be appointed 
to any of the countries or places herein named, shall 
cease on the day that his successor shall enter upon the 
duties of his office. 


16 


Sec. 8 . And be it further enacted , That no envoy ex¬ 
traordinary and minister plenipotentiary, commissioner, 
secretary of legation, dragoman, interpreter, cousul, or 
commercial agent, shall absent himself from the coun¬ 
try to which he is accredited, or from his consular 
district, for a longer period than ten days without 
having previously obtained leave from the President of 
the United States, and that during his absence for any 
period longer than that time, either with or without 
leave, his salary shall not be allowed him. 

Sec. 9. And be it f urther enacted , That the President 
shall appoint no other than citizens of the United 
States, who are residents thereof, or who shall be 
abroad in the employment of the government at the 
time of their appointment, as envoys extraordinary 
and ministers plenipotentiary, commissioners, secreta¬ 
ries of legation, dragomans, interpreters, consuls, or 
commercial agents, nor shall other than citizens of the 
United States be employed either as vice consuls, or 
consular agents, or as clerks in the offices of either, and 
have access to the archives therein deposited. 

Sec. 10. And be it further enacted , That envoys ex¬ 
traordinary and ministers plenipotentiary, and consuls, 
shall be required to locate their legations and consu¬ 
lates, in the places in which they are established, in as 
central a position as can be conveniently procured, and 
keep them open daily from ten o’clock in the morning 
until four o’clock in the afternoon; Sundays, other 
holidays, and anniversaries excepted. 

Sec. 11. And be it further enacted , That as soon as a 
consul or commercial agent shall be officially notified 
of his appointment, he shall execute a bond with two 
sureties, in a sum not less than one thousand nor more 




17 


than ten thousand dollars, for the faithful discharge of 
every duty relating to his office; which bond shall be 
satisfactory to the United States district attorney for 
the district in which the appointed consul resides, and 
be transmitted to the Secretary of State for his appro* 
val. If the consul is not in the United States at the 
time he is commissioned, as soon as he is apprized of 
the fact he shall sign, and transmit by the most expe¬ 
ditious conveyance, a bond like the aforesaid, which 
shall afterwards be undersigned by two sureties who 
are permanent residents of the United States, and 
approved by the State Department. Where there is a 
United States legation in a country to which a consul 
shall be appointed, application shall be made through 
it to the government for an exequatur; but where 
there is none, the application shall be made direct to 
the proper department. 

Sec. 12. And be it further enacted , That it shall be 
the duty of consuls and commercial agents to charge 
the following fees for performing the services specified, 
for which, under the penalty of being removed from 
' office, they shall account to the government at the 
expiration of every three months, and hold the pro¬ 
ceeds subject to its drafts: 

For receiving and delivering ships’ papers, half cent 
on every ton, registered measurement, of the vessel 
for which the service is performed. 

For every seaman who may be discharged or shipped 
at the consulate or commercial agency, or in the port 
in which they are located, one dollar; which shall be 
paid by the master of the vessel. 

For every other certificate, except passports—the sign¬ 
ing and verification of which shall be free—two dollars. 

3 * 


18 


Sec. 13. And be it further enacted , That in capitals 
where a legation of the United States is established, 
consuls and commercial agents shall only be permitted 
to grant and verify passports in the absence of the 
United States diplomatic representative. 

Sec. 14. And be it further enacted , That no commis¬ 
sion shall in future be charged by consuls or commer¬ 
cial agents for receiving or disbursing the wages or 
extra wages to which seamen may be entitled who are 
discharged by the masters of vessels in foreign countries, 
or for moneys advanced to such as may be found in 
distress, seeking relief from the consulate or commer¬ 
cial agency; nor shall any consul or commercial agent 
be directly or indirectly interested in any profits 
derived from clothing, boarding, or sending home such 
seamen. 

Sec. 15. And be it further enacted , That no consul 
or commercial agent of the United States shall dis¬ 
charge any mariner, being a citizen of the United 
States, in a foreign port without requiring the pay¬ 
ment of the two months’ wages to which said mariner 
is entitled under the provisions of the act of February 
twenty-eight, eighteen hundred and three, unless, upon 
due investigation into the circumstances under which 
the master and mariner have jointly applied for such 
discharge, and on a private examination of such mari¬ 
ner by the consul or commercial agent, separate and 
apart from all officers of the vessel, the consul or com¬ 
mercial agent shall be satisfied that it is for the interest 
and welfare of such mariner to be so discharged; nor 
shall any consul or commercial agent discharge any 
mariner as aforesaid without requiring the full amount 
of three months’ wages, as provided by the above- 


19 


named act, unless under such circumstances as will, in 
his judgment, secure the United States from all liability 
to expense on account of such mariner: Provided , That 
in the cases of stranded vessels, or vessels condemned 
as unfit for service, no payment of extra wages shall be 
required; and where any mariner, after his discharge, 
shall have incurred expense at the port of discharge 
before shipping again, such expense shall be paid out 
of the two months’ wages aforesaid, and the balance 
only delivered to him. 

Sec. 16. And be it further enacted , That every con¬ 
sul and commercial agent of the United States shall 
keep a detailed list of all mariners discharged by them, 
respectively, specifying their names and the names of 
the vessels from which they were discharged, and the 
payments, if any, afterwards made on account of each, 
and shall make official returns of said lists half-yearly to 
the Treasury Deparment. 

Sec. 17. And be it further enacted , That every con¬ 
sul and commercial agent of the United States shall 
make an official entry of every discharge which they 
may grant, respectively, on the list of the crew and 
shipping articles of the vessel from which such discharge 
shall be made, specifying the payment, if any, which 
has been required in each case; and if they shall have 
remitted the payment of the two months’ wages to 
which the mariner is entitled, they shall also certify on 
said shipping list and articles that they have allowed 
the remission, upon the joint application of the master 
and mariner therefor, after a separate examination of 
the mariner, after a due investigation of all the circum¬ 
stances, and after being satisfied that the discharge so 
allowed, without said payment, is for the interest and 


20 


welfare of the mariner; and if they shall have remitted 
the payment of the one month’s wages to which the 
United States is entitled, they shall certify that they 
have allowed the remission after a due investigation of 
all the circumstances, and after being satisfied that they 
are such as will, in their judgment, secure the United 
States from all liability to expense on account of such 
mariner; and a copy of all such entries and certificates 
shall be annually transmitted to the Treasury Depart¬ 
ment by the proper officers of the customs in the 
several ports of the United States. 

Sec. 18. And be it further enacted , That if any con¬ 
sul or commercial agent of the United States, upon 
discharging a mariner without requiring the payment 
of the one month’s wages to which the United States 
is entitled, shall neglect to certify in the manner re¬ 
quired in such case by the preceding section of this 
act, he shall be accountable to the Treasury Depart¬ 
ment for the sum so remitted. And in any action 
brought by a mariner to recover the extra wages to 
which he is entitled under the act of February twenty- 
eighth, eighteen hundred and three, the defence that 
the payment of such wages was duly remitted shall not 
be sustained without the production of the certificate 
in such case required by this act, or, when its non¬ 
production is accounted for, by the production of a 
certified copy thereof, and the truth of the facts certi¬ 
fied to, and the propriety of the remission, shall be still 
open to investigation. 

Sec. 19. And be it f urther enacted , That if, upon the 
application of any mariner, it shall appear to the con¬ 
sul or commercial agent that he is entitled to his dis¬ 
charge under any act of Congress, or according to the 


21 


general principles of the maritime law as recognised 
in the United States, he shall discharge such mariner, 
and shall require of the master the payment of three 
months’ wages, as provided in the act of February 
twenty-eighth, eighteen hundred and three, and shall 
not remit the same, or any part thereof, except in the 
cases mentioned in the proviso of the ninth clause of the 
first section of the act of July twentieth, eighteen hun¬ 
dred and forty, to the following effect: “If the consul 
or other commercial agent shall be satisfied the contract 
has expired, or the voyage been protracted by circum¬ 
stances beyond the control of the master and without 
any design on his part to violate the articles of ship¬ 
ment, then he may, if he deems it just, discharge the 
mariners without exacting the three months’ additional 
pay.” 

Sec. 20. And be it further enacted , That every con¬ 
sul and commercial agent, for any neglect to perform 
the duties enjoined upon him by this act, shall be liable 
to any injured person for all damages occasioned there¬ 
by; and, for any violation of the provisions of the 
fifteenth and nineteenth sections of this act, shall also 
be liable to indictment, and to a penalty, in the manner 
provided by the eighteenth clause of the first section 
of the act of July twentieth, eighteen hundred and 
forty. 

Sec. 21. And be it further enacted , That act of April 
fourteenth, seventeen hundred and ninety two, concern¬ 
ing consuls, &c., is hereby so amended that if any 
American citizen dying abroad shall, by will or any 
other writing, leave special directions for the manage¬ 
ment and settlement by the consul of the personal or 
other property which he may die possessed of in the 


22 


country where he may die, it shall be the duty of the 
consul, where the laws of the country permit, strictly 
to observe the directions so given by the deceased. 
Or, if such citizen so dying shall, by will or any other 
writing, have appointed any other person than the 
consul to take charge of and settle his affairs, in that 
case it shall be duty of the consul, when and so often 
as required by the so-appointed agent or trustee of the 
deceased, to give his official aid in whatever way may 
be necessary to facilitate the operations of such trustee 
or agent, and, where the laws of the country permit, 
to protect the property of the deceased from any inter¬ 
ference of the local authorities of the country in which 
he may have died; and to this end it shall also be the 
duty of the consul to place his official seal on all or any 
portions of the property of the deceased as may be 
required by the said agent or trustee, and to break and 
remove the same seal when required by the agent or 
trustee, and not otherwise; he, the said consul or com¬ 
mercial agent, receiving therefor two dollars for each 
seal, which, like all other fees for consular service, in¬ 
cluding all charges for extension of protest, as also such 
commissions as are allowed by existing laws on settle¬ 
ment of estates of American citizens by consuls and 
commercial agents, shall be reported to the Treasury 
Department, and held subject to its order. 

Sec. 22. And be it further enacted , That the follow¬ 
ing record books shall be provided for and kept in 
each consulate and commercial agency: A letter book, 
into which shall be copied, in the English language, 
all official letters and notes, in the order of their dates, 
which are written by the consul or commercial agent; 
a book for the entry of protests, and in which all other 


23 


official consular acts likewise shall be recorded; and 
at seaports, a book wherein shall be recorded the list 
of crew, and the age, tonnage, owner or owners, name 
and place to which she belongs, of every American 
vessel which arives. Consuls and commercial agents 
shall make quarterly returns to their government, 
specifying the amount of fees received, the number of 
vessels, and the amount of their tonnage, which have 
arrived and departed; the number of seamen, and 
what portion of them are protected; and, as nearly as 
possible, the nature and value of their cargoes, and 
where produced. 

Sec. 23. And he it further enacted , That as soon as 
a consul or commercial agent shall have received his 
exequatur, or been provisionally recognised, he shall 
apply to his predecessor for the archives of the con¬ 
sulate or commercial agency, and make an inventory 
of the papers, and such other articles as they may con¬ 
tain, for which he shall pass a receipt and transmit a 
copy thereof to the State Department. 

Sec. 24. And he it further enacted , That the Secre¬ 
tary of State be, and he is hereby, authorized to pre¬ 
scribe such additional regulations for the keeping of 
the consular books and records, and insuring proper 
returns, as the public interest may require. 

Sec. 25. And he it further enacted, That the Presi4* 
dent of the United States be, and he is hereby, 
authorized to bestow the title of consul-general upon 
any United States consul in Asia or Africa, when in 
his opinion such title will promote the public interest. 

Sec. 26. And he it further enacted, That all acts and 
parts of acts authorizing attaches to any of our lega¬ 
tions, or the payment to ministers and consuls of the 


24 


United States of outfits or infits, or salaries for clerk 
hire and office rent, be, and the same are hereby, 
repealed. 

Sec. 27. And be it further enacted , The provisions 
of this act to take effect from and after the thirtieth of 
June next; any law or laws of the United States to the 
contrary notwithstanding. 

Approved March 1, 1855. 


SECTION 3 


OF 

AN ACT MAKING APPROPRIATIONS FOR THE CIVIL AND DIPLOMATIC EXPENSES 
OF GOVERNMENT FOR THE YEAR ENDING THE 30th OF JUNE, 1856, 

AND FOR OTHER PURPOSES.—APPROVED MARCH 3, 1855. 

Sec. 3. And be it further enacted , That the salaries 
to which envoys extraordinary and ministers plenipo¬ 
tentiary shall be entitled on the first of July, eighteen 
hundred and fifty-five, may be allowed to such as may 
be in office on that day without reappointment; nor 
shall such envoys extraordinary and ministers pleni¬ 
potentiary be required to take with them secretaries 
of legation, unless they should be allowed by the 
President of the United States. 



B. 


OPINION OF THE ATTORNEY GENERAL 

ON THE ACT TO REMODEL 

THE DIPLOMATIC AND CONSULAR SYSTEMS OF THE UNITED STATES. 


PART I.—DIPLOMATIC AGENTS. 


Attorney General’s Office, 

May 25, 1855. 

Sir: Your communication of the 17th instant pre¬ 
sents a series of ten questions as to the construction of 
sundry provisions of the act of the last session of Con¬ 
gress, entitled “ An act to remodel the diplomatic and 
consular systems of the United States.” 

Of these questions, three relate to the appointment 
or compensation of ministers proper or secretaries of 
legation; seven to the appointment and compensation 
of consuls. I propose, in the present communication, 
to dispose of so much only of said questions as regards 
ministers and secretaries of legation. 

These questions are as follows: 

1. u Can the President, without the advice and con¬ 
sent of the Senate, appoint envoys extraordinary and 
ministers plenipotentiary in the place of the ministers 
resident, and a secretary of legation to each of them?” 

2. “If such appointments cannot be or are not made 
before the meeting of the Senate and with its advice, 
can the ministers resident remain in office after the 
30th of June next, and until they are superseded by 
envoys?” 

/j* 





26 




3. “ If they can remain in office after the 30th of 
June next, can they be paid out of the appropriations, 
and at what rate?” 

In order to answer these questions intelligently, it 
will be necessary to take into consideration, first, the 
system of diplomatic representation actually existing 
among the powers of Christendom; secondly, the 
course of legislation in the United States hitherto ; and 
thirdly, then to connect with these premises the new 
and material provisions of the late act of Congress, < 

The modern law of nations recognises a class of 
public officers, who, while bearing various designations, 
which are chiefly significant in the relation of rank, 
precedence or dignity, possesses in substance the same 
functions, rights, and privileges, being agents of their 
respective governments for the transaction of its diplo¬ 
matic business abroad, possessing such powers as their 
% respective governments may please to confer, and 
emjoying, as a class, established legal rights and immu¬ 
nities of person and property in the governments to 
which they are accredited, as the representatives of 
sovereign powers. 

Disregarding questions of dignity, these diplomatic 
agents might all be denominated either ambassadors, 
because they are immediate officers of the sovereign; 
or envoys , because they are persons sent; or ministers, 
because engaged in service or public duty; or procu¬ 
rators, because they are the proctors of their respective 
governments; or legates , because officially employed as 
the substitute of the superior; or nuncios, or internun¬ 
cios, because they are messengers to or between gov¬ 
ernments; or deputies, because they are deputed; or 
commissioners, because they hold and discharge com- 


27 


missions; or charges d'affaires , because they are charged 
I with business; or agents , because they act for their 
governments. All these and perhaps other designations 
of public ministers are found in the history of modern 
negotiations, the name having no fixed relation to the 
functions or power, or true nature of the office. 

In the simple indication of duties, these public min¬ 
isters would be divisible into three obvious subdivisions 
of difference, namely: first, ambassadors, legates, nun¬ 
cios, internuncios, envoys, ministers, commissioners, 
deputies, charges d’affaires, agents, ordinary, and the 
same extraordinary, that is, special ,—for the word 
extraordinary in this relation means that and nothing 
more; secondly, procurators, ambassadors, legates, 
nuncios, internuncios, ministers, envoys, commissioners, 
deputies, charges d’affaires, agents, resident, and the 
same non-resident or transient; and thirdly, legates, 
nuncios, ambassadors, procurators, internuncios, envoys, 
ministers, commissioners, deputies, charges d’affaires, 
agents, plenipotentiary, and the same not plenipoten¬ 
tiary or with limited powers. 

But, in the process of time, sometimes to flatter the 
pride of the sovereign represented, or that of the 
representative, or that of the government addressed; 
at other times to indicate shades of difference in 
functions, or in the place or manner of exercising 
them;—under the influence of these and other causes, 
arbitrary and artificial distinctions have grown up in 
the use of titles or names of these officers, which dis¬ 
tinctions of name are for the most part independent of, 
or even absolutely contrary to, the truth and substance 
of the things they pretend to designate. 

Thus it is that the title “ambassador,” in the etymob 


28 


ogy and origin the most equivocal of all the titles in 
the class,—for “ambascia” is “officium velmmisterium 
quodcunque, nobile et ignobile and “ambactus” is 
“servus conductitius /” and “ambasciata” at this day 
is any message, though borne by a household servant;— 
this title so humble in its origin, has come to designate 
a diplomatic agent of the highest rank in the class, 
because taken to be the most direct representative of 
the sovereign; and thus in fact reviving its original 
use of the personal client or servant of the chief or 
prince. 

Thus it is, also, that the Papal See arrogates to itself 
the appointment of peculiar ministers assumed to belong 
to the highest rank, under the name of legate or nuncio, 
both of which terms are in their nature as ordinary, and 
the latter as humble, as any in the whole category. 

Thus it is, also, that the ordinary envoy or diplomatic 
agent of regular and ordinary functions, is by mere 
titular exaggeration turned into envoy extraordinary, 
while another diplomatic agent, who is no more a 
resident minister than he, and just as much an extra¬ 
ordinary envoy, is denominated merely a minister 
resident. 

Thus it is, also, that in one of the varieties of dip¬ 
lomatic agents, to the title u envoy extraordinary ,” 
which is false, is added the further title of “ minister 
'plenipotentiary ,” which is inexact, both in fact and by 
speciality of application; for it is not usual to give to 
any diplomatic agent general plenipotentiary powers, 
but limited ones; and such powers, whatever they may 
be, as are given to envoys, ordinary or extraordinary, 
are frequently given to commissioners, ministers resi¬ 
dent, or even charges d’affaires. 


29 


And thus it is that the title charges d’affaires, 
which is in itself quite as generic and comprehensive 
as any of the others, and may be and often is borne by 
persons exercising as ample and high functions as any 
of the others, has settled into the designation of a 
mere provisional officer, and in dignity of the lowest 
rank. 

As to the title of “commissioner,” which is in fact 
more comprehensive in signification than the others, 
that also, like deputy, when held by a person having 
foreign diplomatic functions, as distinguished from 
functions internal or administrative, has come to have 
something of specific meaning by reason of its very 
indefiniteness, as implying a diplomatic agent of rank 
and functions undefined either as respects the nature 
of his powers, or the place of exercising them; but 
has more commonly been used to denote a minister, the 
range of whose duties and powers is not confined to a 
particular court, and does not depend on his presenta¬ 
tion there, as illustrated in the example of commission¬ 
ers to negotiate and sign treaties of peace, or to open 
new relations with some foreign power. 

With diplomatic agents thus existing as a class, of 
recognised legal rights, but of irregular and vague 
diversities of title and of power, the Constitution of 
the United States intervenes to lay the foundation of 
their appointment under this government, in these 
words: 

“The President * * shall have power, by and with the 
advice and consent of the Senate, to make treaties, provided 
two-thirds of the senators present concur ; and he shall 
nominate, and, by and with the advice and consent of the 
Senate, appoint, ambassadors, other public ministers and 
consuls, judges of the Supreme Court, and all other officers 


30 


of the United States, where appointments are not herein 
otherwise provided for, and which shall he established by 
law.” 

Thus it is perceived that the Constitution, specifying 
“ambassadors” only, as examples of a class, empowers 
the President to appoint these and other “public min¬ 
isters,” that is, any such officers as by the law of 
nations are recognised as “public ministers,” without 
making the appointment of them subject, like “other 
(non-enumerated) officers,” to the exigency of an au¬ 
thorizing act of Congress. In a word, the power to 
appoint diplomatic agents, and to select for employ¬ 
ment any one out of the varieties of the class, accord¬ 
ing to his judgment of the public service, is a consti¬ 
tutional function of the President, not derived from, 
nor limitable by, Congress, but requiring only the 
ultimate concurrence of the Senate; and so it was 
understood in the early practice of the government. 

At this period of time, the only pertinent point seri¬ 
ously made was, whether the Senate were to judge of 
the expediency of the mission or negotiation, or only 
of the fitness of the person. (Marshall’s Life of Wash¬ 
ington, vol. v, p. 370, note; Story’s Com. Const., vol. 
ii, p. 332, note.) It was not pretended that an act of 
Congress constituted the essential prerequisite of the 
rank or designation of a minister, or the institution of 
a mission or negotiation by the Executive. 

Accordingly, at the first session of the first Congress 
of the present United States, an act was passed to es¬ 
tablish the Department of Foreign Affairs, with a Sec¬ 
retary thereof, having charge of the correspondences, 
commissions, or instructions to or with public ministers 
or consuls from the United States, (i Stat. at Large, p. 


31 


28); but no enactment occurs at that session, either in 
the act making appropriations for the service of the 
year, (i Stat. at Large, p. 95), or in any other, to 
define the number or rank of the diplomatic agents of 
the United States. 

Nevertheless, on the 20th of April, 1790, William 
Short was duly commissioned as charge d’affaires in 
France, and William Carmichael in Spain. In each of 
these cases, the designation of the officer was derived 
from the law of nations, and the authority to appoint 
from the Constitution. 

Moreover, on the 13th of October, 1789, Gouver- 
neur Morris received from the President a mere letter 
of instructions authorizing and requiring him to ascer¬ 
tain and report the intentions of Great Britain in 
regard to the observance of the late treaty of peace, 
and the conclusion of a treaty of commerce. Appoint¬ 
ments of a similar character, it will be noticed here¬ 
after, have been made under every administration of 
the Government. 

Subsequently to these three appointments, and at the 
second session of the first Congress, more specific pro¬ 
vision appears on the subject, in the act “providing 
the means of intercourse between the United States 
and foreign nations,” in substance of the following 
tenor: 

“ The President of the United States is authorized to 
draw from the treasury a sum not exceeding forty thousand 
dollars annually, for the support of such persons as he shall 
commission to serve the United States in foreign parts , and 
for the expense incident to the business in which they are 
employed: Provided , That, exclusive of an outfit, which 
shall in no case exceed the amount of one year’s full salary 
to the minister plenipotentiary or charge des affaires to whom 


32 


the same may he allowed, the President shall not allow to 
any minister plenipotentiary a greater sum than at the rate 
of nine thousand dollars per annum, as a compensation for 
all his personal services and other expenses ; nor a greater 
sum for the same than four thousand five hundred dollars 
per annum to a charge des affaires; nor a greater sum for 
the same than one thousand three hundred and fifty dollars 
to the secretary of any plenipotentiary : And provided, also , 
That the President shall account specifically for all such 
expenditures of the said money as in his judgment can 
he made public, and also for the amount of such expendi¬ 
tures as he may think it advisable not to specify, and cause 
a regular statement and account thereof to he laid before 
Congress, and also lodged in the proper office of the Treasury 
Department/' (Act of July 1, 1790, i Stat. at Large, p. 
128.) 

This act is the commencement and the foundation of 
all the legislation of Congress on the general subject. 
It was temporary in terms, being for two years only; 
but at the end of that time it was continued in force 
for one year, together with an additional provision in 
substance as follows: 

u In all cases where any sums have issued, or shall here¬ 
after issue, from the treasury, for the purposes of intercourse 
or treaty with foreign nations, in pursuance of any law, 
the President is authorized to cause the same to he duly 
settled annually with the accounting officers of the treasury, 
in manner following, that is to say, by causing the same to 
he accounted for specifically, in all instances wherein the ex¬ 
penditure thereof may in his judgment he made public; and 
by making a certificate, or causing the Secretary of State to 
make a certificate, of the amount of such expenditures as he 
may think it advisable not to specify; and every such certifi¬ 
cate shall he deemed a sufficient voucher for the sums there¬ 
in expressed to have been expended." (Act of February 9, 
1793, i Stat. at Large, p. 299.) 


33 


At the expiration of the year, the foregoing act was 
continued for another term, with an additional section 
appropriating one million dollars to defray any ex¬ 
pense which might be incurred in relation to the 
intercourse between the United States and foreign 
nations, to be applied under the direction of the 
President. (Act of May 26, 1794, i Stat. at Large, p. 
345.) 

In the next Congress, the same act was again con¬ 
tinued with additional appropriations. (Act of May 
30, 1796, i Stat. at Large, p. 487.) 

In the next Congress, another temporay act on the 
subject was passed, repeating in substance the provis¬ 
ions of previous acts, so far as they bear on the ques¬ 
tion of the appointment and compensation of ministers 
and the powers of the President. (Act of March 19, 
1798, i Stat. at Large, p. 541.) 

But the practice of the government during all this 
time recognised the right and power of the President 
to designate, and, with the consent of the Senate, 
appoint, public ministers of any rank or denomination 
which the public interest might seem to him to require, 
without regard to the fact that in acts of Congress the 
only ministers named were of two denominations, min¬ 
isters plenipotentiary and charge d’affaires. Indeed, 
many of the early appointments are of a title of desig¬ 
nation deliberately different from those expressly 
named in the acts of Congress. 

Of these appointments the following examples will 
suffice to prove and illustrate my doctrine: 

On the 21st of February, 1791, David Humphreys 
was duly appointed “minister resident” in Portugal. 

On the 12th of January, 1792, Thomas Pickney was 
5* 


34 


duly appointed and commissioned by the statute name 
of “minister plenipotentiary” in Great Britain. 

On the 18th of March, 1792, William Carmichael and 
William Short were duly appointed and commissioned 
as “ commissioners plenipotentiary” for certain nego¬ 
tiations with Spain. # 

These are cases pregnant with instruction. Their 
designations are selected at discretion from the multi¬ 
plicity of names of ministers which the law of nations 
affords, and, in the case of the highest appointment, 
with judicious omission of the mere parade superaddi¬ 
tion of “envoy extraordinary” to the name of “minister 
plenipotentiary.” One of these appointments has spe¬ 
cial value as to the matter in hand, that of Mr. Hum¬ 
phreys, appointed “minister resident,” while the statute 
designation was minister plenipotentiary. 

All those acts of the Executive, and others of the 
same nature occurring before and since down to the 
present time, are supported by two fundamental prin¬ 
ciples, one of public policy, and the other of the Con¬ 
stitution. 

The Constitution gives to the President “ power, by 
and with the advice and consent of the Senate, to make 
treaties.” No enabling act of Congress is requisite in 
the premises. Whether, when a treaty has been duly 
made and ratified, there is need or not of an act of 
Congress to give effect to any of its stipulations, is 
another matter, and wholly irrelevant to the question 
of the power to make a treaty. That undeniably be¬ 
longs to the President and Senate. 

The Constitution also declares that the President 
“ shall nominate, and by and with the advice and con 
sent of the Senate, appoint, ambassadors, public minis’ 


ters, and consuls.” I have already said, and I repeat, 
that these words are descriptive of a class existing by 
the law of nations, and they comprehend all which the 
class comprehends. Ambassador, public minister, sig¬ 
nifies all forms or denominations of persons employ¬ 
able as intermediaries between our own and any other 
government. Any such intermediary, according to the 
wants of the public service, may be appointed and 
commissioned by the conjoint executive power of the 
United States; and we shall see in the sequel that the 
President may negotiate a treaty through the interven¬ 
tion of a person not commissioned, or intended to be 
commissioned, on a nomination to the Senate. 

All this power, considerations of public policy re¬ 
quire to be lodged with the Executive; because of the 
nature of diplomatic business, which exacts the use of 
negotiators, single persons to confer with single per¬ 
sons, either at home, and more especially in foreign 
countries. And however the various denominations of 
public ministers may be artificial, yet, practically, dis¬ 
tinctions even of mere dignity, or personal relation, 
are of the most decisive result in human affairs, and 
not to be overlooked without prejudice in the foreign 
affairs of the government; to say nothing of the ques¬ 
tion of access to the sovereign, which, according to 
diplomatic form and usage, depends on the rank of the 
foreign minister. 

At length, in the sixth Congress, and after ten years 
of ad interim legislation on the subject, the general 
provisions of the previous temporary acts were re¬ 
peated in a permanent form, which thus became the 
settled general statute-idea of the government. (Act 
of May 10, 1800, ii Stat. at Large, p. 78.) 


36 


No modification of that idea occurred until, in the 
tenth Congress, an act was passed, which, in addition 
to some consular provisions not necessary to be con¬ 
sidered here, contains two important enactments. 

In the first place, instead of a salary of one thousand 
three hundred and fifty dollars for annual compensation 
of “the secretary of any plenipotentiary,” it provides 
a salary of not more than two thousand dollars to u the 
secretary of any legation or embassy to any foreign 
country, or secretary of any minister plenipoten¬ 
tiary.” 

Secondly, it contains a provision to forbid the pay¬ 
ment of salary to any charge d’affaires or secretary not 
duly appointed, in substance as follows : 

et To entitle any charge des affaires, or secretary of any 
legation or embassy to any foreign country, or secretary of 
any minister plenipotentiary, to the compensation herein¬ 
before provided, they shall respectively be appointed by the 
President of the United States, by and with the advice and 
consent of the Senate; but, in the recess of the Senate, the 
President is hereby authorized to make such appointments, 
which shall be submitted to the Senate at the next session 
thereafter for their advice and consent; and no compensa¬ 
tion shall be allowed to any charge des affaires, or any of 
the secretaries hereinbefore described, who shall not be ap¬ 
pointed as aforesaid: Provided y That nothing herein con¬ 
tained shall be construed to authorize any appointment of a 
secretary to any charge des affaires/’ (Act of May 1, 1810, 
ii Stat. at Large, p. 608.) 

Nothing material of pertinent general legislation 
occurs further until the twenty-seventh Congress, when 
the following law was enacted: 

The President of the United States shall not allow to 
any minister resident a greater sum than at the rate of six 


37 




thousand dollars per annum, as a compensation for all his 
personal services and expenses,” with “ an outfit which 
shall in no case exceed one year’s full salary of such minis¬ 
ter resident.” (Act of Aug. 6, 1832, s. 9, v. Stat. at Large, 
p. 525.) 

Here is a maximum limitation by statute of the com¬ 
pensation of a minister resident; but neither this nor 
any other statute enacts that there shall be a public 
officer denominated “minister resident.” 

At a very recent day, Congress—-justly appreciating 
the inconvenience of having a permanent grade of duly 
appointed ministers directly and fully representing the 
country, and yet bearing the name of charge d’affaires, 
and so subject to be confounded with consuls, or other 
persons wholly unofficial, upon whom the temporary 
charge of the archives of the legation might fall by 
reason of the death, disability, or absence of the min¬ 
ister,—indicated by the language of appropriation, the 
thought or recommendation of having the commission 
of minister conferred in all cases, instead of that of 
charge d’affaires, but, for those particular cases, retain¬ 
ing unchanged the salary of the last named grade. 
(Act of March 3, 1853, Session Acts 1852-’3, p. 203.) 
But neither did this act create, or profess to create, the 
office of minister resident. 

It has been the course of legislation for many years 
to specify, in the annual act making appropriations for 
the civil and diplomatic service of the government, 
the several foreign missions for which appropriation is 
made ; and this legislative practice may have led to 
erroneous impressions as to the constitutional relations 
in this respect of the Executive and of Congress. 

These legislative provisions do not in terms profess to 


38 


be the creation of the officers of minister to Great 
Britain, to France, and to other countries; but only 
the supply of money with which to pay their outfits, 
salaries, and contingencies. I will show by the legis¬ 
lative history of the matter, that it does not in the 
remotest degree raise any implication of these forms of 
appropriation being intended, or in fact operating, as 
the creation of offices, or as either giving power to, 
or taking it away from, the President and Senate. 

Of this form of appropriation, the earliest example 
which occurs is in the fifteenth Congress, the last of 
the administration of Mr. Madison. 

It stands in the act u making appropriation for the 
support of government,” in these words: 

“For salaries of the ministers of the United States to 
London, Paris, St. Petersburg, Rio Janeiro, Stockholm, 
Madrid, and the Hague, and their several secretaries of lega¬ 
tion, seventy-seven thousand dollars. 

“For outfits of ministers of the United States to London 
and St. Petersburg, eighteen thousand dollars. 

“For the contingent expenses of the missions aforesaid, 
^en thousand dollars. 

“For the contingent expenses of the intercourse between 
the United States and foreign nations, eighty thousand 
dollars.” (Act of April 9, 1818, iii Stat. at Large, p. 422.) 

I quote the provision of the next year, to show the 
whole extent of the innovation, because it contains a 
clause, which then first appears, to legalize in fits, as 
follows: 

“For salaries to the ministers of the United States to 
London, Paris, St. Petersburg, Rio Janeiro, and Madrid, 
with the salaries of their respective secretaries of legation, 
and the salaries of a charge d’affaires at the Hague and at 
Stockholm, and for the usual allowance of three months’ 


39 


salary payable to the minister at Stockholm, payable on his 
return home, sixty-six thousand two hundred and fifty 
dollars. 

“For outfit fora minister plenipotentiary at Kio Janeiro 
and Madrid, and also for the charges des affaires at London, 
the Hague, and Stockholm, thirty-one thousand five hundred 
dollars. 

“For the contingent expenses of the missions aforesaid, 
ten thousand dollars. 

“For the contingent expenses of the intercourse between 
the United States and foreign nations, thirty thousand dol¬ 
lars.” (Act of March 3, 1819, iii Stat. at Large, p. 501.) 

Now, that all this, and what has followed of the same 
form in subsequent years, is specification of expendi¬ 
ture and appropriation merely, and not creation of 
offices, is demonstrable by inspection of the previous 
action of the government. 

We have observed that President Washington made 
appointments of foreign ministers without reference to 
designations of name in acts of Congress, and that the 
expenses of foreign intercourse were in his time pro¬ 
vided for by acts for that special purpose, but in 
general terms. 

Exceptions to the practice of appropriations of this 
class, in special acts, begin to appear in the time of Mr. 
John Adams. 

The act making appropriations for the support of 
government passed March 3, 1797, supplies a deficiency 
in the previous special appropropriation for the year, 
made by the act “providing the means of intercourse 
between the United States and foreign nations.” (i Stat. 
at Large, p. 500.) 

An act of July 10, 1797, making additional appro¬ 
priations for the support of government, contains an 


40 


item “for defraying the expenses of foreign intercourse 
beyond the appropriations heretofore authorized by 
law.” (i Stat. at Large, p. 535.) 

The ensuing year appropriations under this head 
were made by a special act hereinbefore cited in 
another relation, “ providing the means of intercourse 
between the United States and foreign nations.” (Act 
of March 19, 1798, i Stat. at Large, p. 541.) 

The year afterwards, an additional appropriation is 
made for the expenses of intercourse with foreign 
nations, in a general appropriation act. (Act of March 
2, 1799, i Stat. at Large, p. 723.) 

A similar provision is found in the acts making 
general appropriations for both sessions of the next 
Congress. (Act of May 7, 1800, ii Stat. at Large, p. 
66, and of March 3, 1801, ii Stat. at Large, p. 120.) 

These acts bring us to the close of the administration 
of Mr. Adams; and it is to be remembered that, during 
his presidency, we had not only the ordinary missions, of 
which no specific mention comes up in any of the acts, 
but also two very important special missions, in like 
manner unmentioned in any act, namely, the appoint¬ 
ment of John Marshall, Elbridge Gerry, and Charles 
C. Piuckney, as ministers extraordinary to France, in 
1797; and that in 1799, of a similar special mission to 
the same country, composed of Oliver Ellsworth, 
William V. Murray, and William R. Davie. 

We come now to the administration of Mr. Jefferson, 
throughout which the ordinary course of legislation in 
this matter is uniform, namely, the insertion in the an¬ 
nual appropriation act, “for the support of the govern¬ 
ment,” of an item appropriating so much “for the 
expenses of intercourse with foreign nations.” Just 


41 


those words, and nothing more, disposed of the whole 
question during the time of Mr. Jefferson. (See act of 
May 1, 1802, ii Stat. at Large, p. 188; act of March 2, 
1803, ibid., p. 214; act of March 14, 1804, ibid., p. 
269 ; act of March 1, 1805, ibid., p. 321; act of April 18, 
1806, ibid., p. 388; act of March 3,1807, ibid., p. 436; 
act of February 10, 1808, ibid., p. 466; act of February 
17, 1809, ibid., p. 524.) 

We then reach the administration of Mr. Madison. 
At first, the practice of the previous administration in 
this respect was continued; for in the three sessions of 
the eleventh Congress, and in both sessions of the 
twelfth Congress, the same form recurs, of appropria¬ 
tions in the general appropriation act for the support 
of government, of so much “for expenses of intercourse 
with foreign nations.” (See act of February 26, 1810, 
ii Stat. at Large, p. 562; act of February 20, 1811, 
ibid., p. 647; act of February 26, 1812, ibid., p. 690; 
act of March 3, 1813, ibid., p. 829.) 

In the next Congress, a slight change appears. In¬ 
stead of the previous most general expression,—“for 
expenses of intercourse with foreign nations,”—the 
words are: “for the salaries, allowances, and contingent 
expenses of ministers to foreign nations and of secreta¬ 
ries of legation.” (Act of March 24, 1814, iii Stat. at 
Large, p. 111.) The same words appear in the act of 
the next year, (act of February 16, 1815, ibid., p. 
211); and the next, (act of April 16, 1816, ibid., 
p. 283); and the next, (act of March 3, 1817, ibid., p. 
358); and then we come to the act above cited, which 
begins the series of acts in which the several existing 
or anticipated missions are introduced by name. 

It is impossible to believe or imagine that these four 
6 * 


42 


Presidents, Washington, John Adams, Jefferson, and 
Madison, and the men who participated with them in 
the conduct of public affairs, emphatically the founders 
of this government, did not understand this thing, or 
understanding it, failed to legislate therein in conformi¬ 
ty with the Constitution. None of the statesmen of 
that whole generation looked to an act of Congress for 
the creation of the office of “public minister.” Nor is 
anything to the contrary inferable from assumed differ¬ 
ences in constitutional theory on the part of these 
several Presidents. For Mr. Jefferson was the Secre¬ 
tary of State under whom occurred the leading cases of 
the administration of President Washington; and it is 
in the administration of President Jefferson, with Mr. 
Madison as Secretary of State, that the very general 
form of the appropriation most emphatically negatives 
the supposition of the office of “public minister” being 
the legislative creation of Congress. 

Nevertheless, in the administrations of Presidents 
Jefferson and Madison, ordinary ministers continued to 
be appointed and changed, as in the previous adminis¬ 
trations of Presidents Washington and John Adams; 
and equally signal instances of important special ap¬ 
pointments occur, as in the case of the commissioners 
of Ghent. 

Meanwhile special provision had been made for 
several cases of diplomatic intercourse, which afford 
apt illustration of the policy and theory of the govern¬ 
ment. 

In the time of Mr. Jefferson, there were two very 
significant acts of this character: one, that of April 3, 
1802, making appropriation for defraying the expenses 
of a particular negotiation, “when the President of the 


43 


United States shall deem it expedient to commence 
such negotiations,” (ii Stat. at Large, p. 139); and that 
of February 26, 1803, which appropriates the sum of 
two million dollars, “for the purpose of defraying any 
extraordinary expense in the intercourse between the 
United States and foreign nations,” (ii Stat. at Large, 
p. 202); and which last provision related to the im¬ 
portant negotiations of that day with France. 

Next in order of date and legislative interest is the 
act of May 4, 1828, “making appropriations for carry¬ 
ing into effect the appointment of a mission to the 
Congress of Panama.” This act provides for the out¬ 
fits and salaries of two envoys extraordinary and min¬ 
isters plenipotentiary, and a secretary, to the mission to 
the proposed congress, (iv Scat, at Large, p. 158.) 
Considering that the President has by the Constitution 
power to appoint diplomatic ministers, and that the 
general tenor of legislation is in that sense, we may 
reasonably regard the language of the act establishing 
this mission as the supply of means only, or at most as 
recommendatory; and such, we shall see, was the view 
entertained of it by President John Q. Adams, by the 
Senate, and by Congress. 

Corresponding to this idea is the language of one of 
the sections of the important act passed at the close of 
the twenty-fifth Congress, in apprehension of imminent 
hostilities with Great Britain, which section makes ap¬ 
propriation “for outfit and salary of a special minister 
to Great Britain, provided the President of the United 
States shall deem it expedient to appoint the same.” 
(Act of March 3, 1839, s. 6, v Stat. at Large, p. 336.) 

Not long afterwards, in the twenty-seventh Con¬ 
gress, an act placed money at the disposal of the 


44 


President, to enable him to establish the future com¬ 
mercial relations between the United States and the 
Chinese empire on terms of national equal reciprocity; 
providing only “that the annual compensation to any 
one person employed under this act shall not exceed 
the sum of nine thousand dollars exclusive of outfit 
and “that no agent shall be sent by virtue of this act 
unless he shall have been appointed by and with the 
advice and consent of the Senate.” (Act of March* 
3, 1843, v Stat. at Large, p. 624.) 

Under this act, the President appointed a person as 
negotiator, with commissions as commissioner and as 
minister plenipotentiary, and another as secretary of 
legation; since which time annual appropriation has 
been made for the compensation of a diplomatic com¬ 
missioner, and a secretary-interpreter. 

In recent acts, there is appropriation for the salary 
of a commissioner, who has diplomatic functions, to 
reside at the Sandwich Islands; but there is no act 
creating that office. 

There is a long series of special acts appertaining to 
our relations with the various Mohammedan states of 
the Mediterranean and of the Indian seas, and to some 
of the minor states of Asia. Some of these will pass 
under review in treating of the appropriations for 
consuls, through whom for many years our permanent 
relations with the Barbary and other Mohammedan 
states have been maintained, although treaties were 
negotiated with them by special commissioners. None 
of these acts vary the conclusions of legal doctrine 
derived from other acts of Congress. 

In the management, however, of the public business 
regarding the class of states out of Christendom, we 


45 


find a body of very strong facts in illustration of the 
power of the Executive to negotiate. 

President Washington granted to David Humphreys, 
on the 2d of March, 1793, without the previous con¬ 
currence of the Senate, a commission as commissioner 
plenipotentiary to treat with Algiers. 

Passing over intermediate incidents of the same 
nature, we come to the case of Charles Rhind, David 
Offley, and Com. James Biddle, who, on the 12th of 
September, 1829, were commissioned by President 
Jackson as joint and several “commissioners of the 
United States”* to negotiate, and did negotiate the 
existing treaty between the United States and Turkey. 

The same President, on the 26th of January, 1832, 
appointed Edmund Roberts as “commissioner of the 
United States” to negotiate treaties with the govern¬ 
ments of Cochin China and Siam; the result of which 
was the existing conventions with Muscat and Siam. 

On the 16th of August, 1849, Joseph Balestier re¬ 
ceived from President Fillmore the appointment of 
“special agent of the United States” to Cochin China 
and other parts of southeastern Asia; out of which 
commission came our treaty with Borneo. 

In conclusion of these precedents, we have the late 
case of the appointment of Com. Matthew C. Perry, 
under commission from President Fillmore of the 13th 
of November, 1852, to negotiate with Japan. 

We have modern examples, indeed, of commissions 
of the same nature for negotiations with some of the 
nations of Christendom, among which the following 
may be noted: 

On the 3d of May, 1838, Nathaniel Niles was com¬ 
missioned by President Van Buren as “special agent 


46 


of the United States” to the kingdom of Sardinia, and 
as such negotiated our treaty with Sardinia. 

On the 28th of March, 1846, A. Dudley Mann was 
appointed by President Polk “special agent of the 
United States” to treat with sundry states of Germany, 
and as such agent he negotiated the treaty with Han¬ 
over. 

Now, in the case of neither of these appointments, 
covering as they did important negotiations in Europe 
as well as in Asia, was there any authorizing act of 
Congress, any preparatory specific appropriation, nor- 
even a commission by and with the advice and consent 
of the Senate. In each instance, the successive Presi¬ 
dents acted, as did the earlier Presidents in consimili 
casu , in virtue of their constitutional power “to make 
treaties,” that is, to negotiate and prepare them for 
the consideration of the Senate, just as in virtue of 
direct authority of the Constitution, and without the 
aid of any mere enabling statute, he has power to 
grant pardons for offences against the United States. 

A flood of light is thrown on this whole subject by 
the proceedings and discussion in the Senate, and the 
subsequent action of both houses, on occasion of the 
nomination of the ministers to the Congress of Panama. 
(See Senate Exec. Journ., vol. iii, pp. 457, 474, 516, 
518.) 

President John Q. Adams, in communicating these 
nominations to the Senate, said by message, that, 
although he deemed the having the United States rep¬ 
resented at that congress was a measure within the 
constitutional competency of the Executive, yet he 
had not thought proper to take any step in it, before 
ascertaining that his opinion of its expediency would 


47 




concur with that of both branches of the legislature, 
first by the decision of the Senate upon the nomina¬ 
tions to be laid before them, and secondly, by the 
sanction of both houses to the appropriations, without 
which it could not be carried into due effect. 

Upon these nominations there ensued much debate 
in executive session of the Senate, terminating in the 
confirmation of the nominations, and the virtual sanc¬ 
tion of the President’s opinion and recommendation. 

The views of the minority appear in the report of 
the Committee on Foreign Relations, which concluded 
with the following resolution: 

“ Resolved , That it is jiot expedient at this time for the 
United States to send any ministers to the Congress of 
American Nations assembled at Panama 

which resolution was rejected by a vote of 19 to 24; 
and in a series of resolutions offered by Mr. Van Buren, 
and also rejected by the same vote, but one of which, 
in the following words, is pertinent to the present 
question : 

“Resolved, That the Constitution of the United States, 
in authorizing the President of the United States to nomi¬ 
nate, and by and with the advice and consent of the Senate 
appoint, ‘ambassadors (and) other public ministers/ author¬ 
izes the nomination and appointment to offices of a diplo¬ 
matic character only, existing by virtue of international 
laws, and does not authorize the nomination and appoint¬ 
ment, under the name of ‘ministers/ of representatives to 
an assembly of nations, like the proposed Congress of Pan¬ 
ama, who, from the nature of their appointment, must be 
mere deputies, unknown to the law of nations, and without 
diplomatic character or privilege.' 7 

Now, without going out of our way to discuss the 
expediency of the mission to the Congress of Panama, 


or the question whether the federal government could 
constitutionally, even with full consent and concurrence 
of the Congress of the United States, of the President, 
and of the Senate, be represented in such a congress, 
it is only material here to remark, that the whole argu¬ 
ment on both sides concedes that, if the members of 
the congress could be rightfully considered as “public, 
ministers” with diplomatic functions and rights, under 
the law of nations, then the appointment of them would 
fall within the proper constitutional functions of the 
President and the Senate. The Constitution, Mr. Van 
Buren admits, authorizes the nomination and appoint¬ 
ment to offices of a diplomatic character, existing by 
virtue of international laws , that is, not depending for 
existence on acts of Congress. 

Unless we took note of these proceedings, and of 
their time and character, the act of Congress making 
appropriation for the mission might seem to constitute 
a source of authority to the President in the premises. 
But the contrary is the fact. The resolution of the 
Senate advising and consenting to the appointment of 
Bichard C. Anderson and John Sergeant as ministers 
to the Congress of Panama, and of William B. Rochester 
as secretary of the mission, was adopted in that body 
on the 14th of March, 1826. Thereupon the offices 
were filled, and the officers existed, as being, in 
the judgment.of a majority of the Senate, “’public 
ministers” by the law of nations, and if so, then, in 
the judgment of all, ministers of the United States 
by the Constitution. No legislative act of Congress 
had created the offices, or defined the rank and func¬ 
tions of the officers. But thereafter, by act of May 
4th, 1826, Congress made appropriation for the outfit 


49 


and salary of the ministers and salary of the secretary, 
and contingencies of the mission; and thus accepted 
and recognised the officers, already in existence, as 
lawfully existing and duly appointed officers of the 
United States. 

And that whatever doubts Mr. Van Buren had on 
the subject were, as the tenor of his resolution implies, 
not doubts as to the power of the Executive to ap¬ 
point envoys extraordinary for a new mission, and a 
secretary of legation, without any previous enabling 
act of Congress, but whether the mission to Panama 
was, in fact as well as name, a diplomatic mission with¬ 
in the scope of the powers of the United States as a 
government,—is proved by his own subsequent action; 
for the commission appointing James Biddle, Charles 
Rhind, and David Offley, joint and several plenipoten¬ 
tiary commissioners to the Ottoman Porte, was under 
the direction of Mr Van Buren as Secretary of State; 
and that commission being issued not only without 
special appropriation or other authorizing legislative 
act, express or implied, but without concurrence of the 
Senate. 

On this full retrospect of the entire legislation and 
executive practice of the government, it is thus seen 
that there is no law which prescribes the power, the 
name, the rank, the number, the time, or the place 
of our public ministers; that when acts of Congress 
mention either of those incidents, it is only to make 
appropriations, or at most to offer suggestive recom¬ 
mendations. 

Of course, it became the established rule for the 
President, by and with the advice and consent of the 
Senate, and according to his and their judgment, to 
7* 


50 


appoint such ministers, with such powers, at such times, 
to such places, as the public interest might seem to 
demand, with no limitation save in the fact of there 
being a defined salary for four only of the denomina¬ 
tions of public ministers;—and then, either before or 
after the appointment, presenting estimates for the 
requisite expenditure. At first, as we have perceived, 
appropriation was made in a gross sum to cover all 
the expenses of foreign intercourse, including salaries 
of ministers. Afterwards, and since it grew to be 
customary to make appropriations more specific, the 
practice has been to make estimates and to pass appro¬ 
priations for the aggregate salaries and outfits, first of 
unenumerated and then of enumerated ministers, sec¬ 
retaries of legation, and charges d’affaires, with specific 
items of appropriations for contingent expenses of 
missions abroad and of foreign intercourse. 

As the President appointed negotiating agents of 
himself, and ministers proper with consultation of the 
Senate alone, so he reduced or discontinued a mission 
in his discretion; and his power to make this change 
is impliedly recognised by the express terms of act of 
Congress. (Act of May 18, 1842, no. 195, v Stat. at 
Large, p. 486.) 

The President’s power of appointment is practically 
limited, to a certain degree, by the necessity of ob¬ 
taining appropriations from Congress to defray the ex¬ 
penses of a mission; but this limitation is in effect 
removed by the appropriation of a sum of money for 
the contingent expenses of foreign intercourse, on 
which the President may draw for an appointment 
publicly made, or even for a secret appointment, under 
the power of the President to file a certificate of any 


51 


sum expended without explanation of the object of 
expenditure. Besides which, an officer may lawfully 
be, and occasionally is, appointed, either a statute 
officer or other, without any existing provision for his 
compensation: which, if he be lawfully appointed, 
creates a valid debt against the government. 

In regard to the possible varieties of diplomatic 
agents, we have in the Constitution “ambassadors” 
and “public ministers,” which includes all the contents 
of the class. That construction of the phrase, in the 
clause of the Constitution defining the power of ap¬ 
pointments, is confirmed by the use of the same words 
in a subsequent clause, which empowers the President 
to “receive ambassadors and other public ministers,” 
meaning of course all possible diplomatic agents which 
any foreign power may accredit to the United States; 
as also where the same expressions are employed in 
the clause defining the jurisdiction of the courts of the 
United States. 

In the acts of Congress, we have mention of min¬ 
isters plenipotentiary, envoys extraordinary, special 
ministers, commissioners, ministers resident, charges 
d’affaires, secretaries of a plenipotentiary, and secre¬ 
taries of embassy and legation; and also “agents,” 
so called, who were in fact ministers with special 
powers. But these statute designations are not exclu¬ 
sive. At a time when neither minister resident nor 
commissioner plenipotentiary had ever been mentioned 
in the statutes, the President, with concurrence of the 
Senate, appointed such officers; and the appointments 
were constitutional and valid, notwithstanding that 
certain other diplomatic officers, and those only, were 
mentioned in acts of Congress. 


52 


In respect to their functions as related to their titles, 
the diplomatic agents of the United States spoken of 
in the acts of Congress are not reducible to any uni¬ 
form rule of designation and consequent rank. In the 
different statutes, we have charges d’affaires of perma¬ 
nent station ; officers of each name with all the powers 
usually accorded to a minister plenipotentiary; com¬ 
missioners accredited to a court, as in the case of the 
minister to the Sandwich Islands, and envoys not 
accredited to any court, as in the case of the ministers 
to the Congress of Panama. 

This government has never made the appointment 
of “ambassador;” but the Constitution expressly au¬ 
thorizes it to be done; and the act of Congress, which 
provides for a secretary of legation or “embassy,” 
evidently points to the same fact. We are not to 
assume that the omission to make this appointment has 
arisen from any doubt of the adaptation of the rank 
of “ambassador” to our institutions. If, by usage in 
Europe, the ambassador enjoys higher privileges be¬ 
cause of his pretended or putative direct relation to 
the sovereign, we may with right demand the conces¬ 
sion of those privileges for the representative of the 
popular sovereignty of a republic not less than of the 
regal or imperial sovereignty of a monarchy. The 
United States are not bound by agreements in this 
respect, which this or that occasional combination of 
European governments may choose to make. We ac¬ 
quiesce in what is a matter of no account, the classi¬ 
fication of ministers arranged at the congresses of 
Vienna and Aix-la-Chapelle, which puts ambassadors, 
legates, and nuncios, in the first rank; envoys extra¬ 
ordinary and internuncios, in the second; ministers 


53 


resident in the third; and charges d’affaires at the 
bottom of the scale, (Martens, Guide Diplomatique, 
tom. i, p. 1, ch. 3) : but in doing this, we relinquish 
no rights. Regulations which we did not participate 
in, we accept or not as we please. Of course, we can 
by no means admit that ambassadors, and they only, 
have a representative character. Whatever in Europe 
may be the arbitrarily assumed relation of any foreign 
minister to the sovereign of his country, all ministers, 
duly appointed and commissioned by the constitutional 
authorities, are alike the direct “representatives,” as 
they are aptly termed in the statute before me, of the 
United States. 

The republic of the United Provinces has had its 
ambassadors in the courts and congresses of Europe; 
so may they be had by the republic of the United 
States. 

In truth, neither the power nor the functions of a 
public minister with us have the least regard to his 
title. That, and the salary, are questions of dignity 
only. None of our ministers have, in strictness, full 
powers, because they are confined by their instructions, 
and still more by the limited powers of the federal 
government, from which ensues the necessity of limited 
powers to each one of its functionaries. Within the 
range of constitutional authority, they have such powers 
as the President sees fit to grant, and no more. On the 
other hand, whatever their title of dignity, and what¬ 
ever the salary allowed to support that more or less 
of dignity, they are, each and all, in virtue of their 
commissions under the great seal of the United States, 
the unquestionable representatives pro tanto of the 
sovereignty of the United States. 


54 


To complete the statement of existing facts and 
legislation as preliminary to the consideration of the 
new provisions of law presented to me for construction, 
there is one remaining topic to be discussed, and that 
is, the relation of diplomatic appointments to the 
Senate. 

That a diplomatic or any other commission, lawfully 
granted by the President alone in recess of the Senate, 
is just as valid as if granted on the approval of the 
Senate, provided it be the case of a vacancy existing 
in the recess, no man doubts. I myself held such a 
commission, which was not only subject to the question 
formerly entertained, but now obsolete, of whether a 
vacancy can exist only as the consequence of an office 
once filled, but to the special question raised by the 
statute, which provided that the commission should not 
be held by any person unless appointed by and with 
the advice and consent of the Senate. 

It was properly decided in this case, by the subse¬ 
quent vote of the Senate confirming the appointment, 
and the acts performed in virtue of it, that the proviso 
was nugatory, because in derogation of the Constitu¬ 
tion. ’But a larger inquiry is involved in such a case. 
Does the vacancy clause of the Constitution apply to 
diplomatic ministers ? 

It is the undeniable fact that “public ministers,” as 
a class , are created by the Constitution and the law of 
nations, not by act of Congress. No act of Congress 
created the offices of minister to Great Britain, France, 
Spain, Portugal, the United Provinces, and other coun¬ 
tries to which ministers were sent by President Wash¬ 
ington. They were not even mentioned in acts of 
appropriation. And thoughtful men have held that 


wherever no “ambassador” or other “public minister” 
exists at the moment, and the exigency for one springs 
up, there is a “vacancy” in the true spirit of the Con¬ 
stitution. 

It is quite apparent that imperative emergencies 
may arise during the recess of the Senate, which call 
for the appointment of a diplomatic agent in a perfectly 
new case; as if, in flagranti hello , there be propositions 
of peace, which it imports the public interest in the 
highest degree to entertain and to endeavor to bring 
to a prompt conclusion, and which demand instant 
action. Cannot the President in such case appoint a 
ministerial negotiator? 

I conceive that undoubtedly he may; and that the 
only questions will then be, first, of the salary of such 
minister, and, secondly, of the titular designation he is 
to receive. And to this effect, it is believed, has been 
the uniform practice of the government. Which is 
confirmed by the consideration that, as a general rule, 
the “full power,” in virtue of which the agent of the 
United States negotiates and signs a treaty, which is 
the most important and solemn act of diplomatic ser¬ 
vice, is conferred specially in each case, and may be 
given to a special minister, to the resident minister, to 
the minister resident at some other court, to a justice 
of the Supreme Court, to one of the heads of depart¬ 
ment, to a consul, to an officer of the navy, to a simple 
“citizen of the United States,” or to a special agent, 
so called, not a commissioned officer of the United 
States, as in the case of Mr. Morris and of others 
selected at the mere discretion of the President. (See, 
for example of each, treaty with Great Britain of 1794, 
convention with France of 1800, treaty with Sweden of 


56 


1816, treaty with Spain of 1819, treaty with Greece, 
treaty with the Porte, treaty with Ecuador, treaty with 
Sardinia, treaty with Hanover.) 

We have seen how numerous are the cases of nego¬ 
tiating “commissioners” appointed in the recess of the 
Senate. Cases are not wanting of the appointment, 
during the recess, of diplomatic officers of recognised 
statute denominations, but to places where previously 
there had been no office of the particular rank. Thus 
it was in the case of Bailie Peyton, the first envoy 
extraordinary and minister plenipotentiary to Chile, 
appointed August 9th, 1845; and Fletcher Webster, 
appointed April 24th, 1843, the first secretary of lega¬ 
tion to China. 

As to provisional charges d’affaires, the cases are 
numerous of their appointment by the President during 
the recess, or by a retiring minister, with the Presi¬ 
dent’s approbation. There is a printed list of numer- 
our appointments of this description, occurring between 
the years 1789 and 1827, contained in a report of that 
year rendered by the Secretary of State (Mr. Clay) in 
answer to a resolution of the House of Representatives, 
in which Mr. Clay says : “So important is it regarded, 
to preserve without interruption the diplomatic inter¬ 
course between nations which are mutually represented 
by ministers, that, upon the death of a minister, the 
secretary of legation becomes, by established usage, 
ipso facto charge d’affaires until his government is ad¬ 
vised and provides for the event.” And he adds, that 
the authority for such appointments is believed to be 
furnished by the Constitution of the United States and 
the public law and usage of nations. (Executive docu¬ 
ments, 2d session 19th Congress, No. 73.) 


57 




It would have been impossible for me, without thus 
reviewing the past diplomatic legislation and action of 
the government, and collecting the results in a con¬ 
nected view, to make present clearly to my own mind 
the true relation of the new laws to those which have 
gone before them. I come now to the act submitted 
to me for examination. 

This act, under date of March 1, 1855, contains 
numerous provisions regarding the diplomatic and con¬ 
sular systems of the United States, many of them of 
mere incidental regulation, and others of more funda¬ 
mental legislation; and the first pertinent question, 
which arises on it, is of its general effect and operation 
as a statute. 

The commencing section of the act provides that 
“from and after the 30th day of June next, the Presi¬ 
dent of the United States shall, by and with the advice 
and consent of the Senate, appoint representatives of 
the grade of envoys extraordinary and ministers pleni¬ 
potentiary,” with a specified annual compensation for 
each respectively, “to the following countries,” namely, 
Great Britain, France, Spain, Russia, Austria, Switzer¬ 
land, Rome, Two Sicilies, Sardinia, Belgium, Nether¬ 
lands, Portugal, Denmark, Sweden, Turkey, China, 
Brazil, Peru, Chili, xirgentine Republic, New Granada, 
Bolivia, Ecuador, Venezuela, Guatemala, Nicaragua, 
and the Mexican Republic. 

The second and third sections, each enacting in the 
same language,—that is, from and after the day men¬ 
tioned, the President shall, by and with the advice and 
consent of the Senate, appoint,—provides for “secre¬ 
taries of legation” to each of the countries previously 
named, except China and Turkey, for one of which it 
8 * 


58 


provides an “interpreter,” and for the other a “dra¬ 
goman ;” and also provides for a commissioner to the 
Sandwich Islands. 

The tenor of these three sections of the act is to 
provide compensation for “envoys extraordinary and 
ministers plenipotentiary,” not only to places where 
we now have such a minister, but at others also, where 
the present officer is a “minister resident,” and to give 
to each a “secretary of legation.” 

In regard to the form of compensation, the first sec¬ 
tion, applicable to ministers, employs the words: “who 
shall receive an' annual compensation for their services 
not exceeding the amount specified herein for each,”— 
and annexes the amount to the name of the country, 
thus: “ Great Britain, seventeen thousand five hundred 
dollars;” and the second section employs the same 
precise language and form of enactment regarding 
secretaries of legation. 

The sixth, seventh, and eighth sections provide that 
no one of the above officers shall “be.entitled to com¬ 
pensation until he shall have reached his post, and 
entered upon his official duties;” that his compensa¬ 
tion “shall cease on the day that his successor shall 
enter upon the duties of his office;” and that “his 
salary shall not be allowed him” if he be absent from 
the country to which he is accredited more than ten 
days, without leave previously obtained from the Presi¬ 
dent; and the twenty-sixth section repeals all pro¬ 
visions of statute authorizing the payment of outfit 
and infit, clerk hire and office rent, to any minister of 
the United States. 

In the body of the act is one provision in regard to 
appointments, which, like some other things in the act, 


59 


must be deemed directory or recommendatory only, 
and not mandatory:—that, namely, which enacts that 
to these offices, “the President shall appoint no other 
than citizens of the United States, who are residents 
thereof, or abroad in the employment of the govern¬ 
ment at the time of their appointment.” The limit of 
the range of selection for the appointment of constitu¬ 
tional officers depends on the Constitution. Congress 
may refuse to make appropriations to pay a person 
unless appointed from this or that category; but the 
President may, in my judgment, employ him, if the 
public interest requires it, whether he be a citizen or 
not, and whether or not at the time of appointment he 
be actually within the United States. 

The concluding section of the act, the twenty-seventh, 
is in these words: “The provisions of this act to take 
effect from and after the 30th of June next, any law or 
laws of the United States to the contrary notwith¬ 
standing.” 

Now, in seeking out the proper construction of these 
provisions, it is my plain duty, independently of my 
knowledge of the laudable purposes in which the act 
originated, to inquire in good faith what is its legal 
intendment as it stands on the statute book. 

As the act does not contain any general repealing 
words, either at its commencement or its end, and as 
the concluding section merely provides that the pres¬ 
ent act shall take effect on a given day notwithstanding 
any other law,—which it would have done without 
that clause,—it becomes a very serious question whether 
the act does in fact repeal any provision of law except 
such as it repeals specially, and whether its main effect 
be not merely the enactment of new regulations, par- 


GO 


ticularly on the subject of compensation. For the 
important provisions of the act are affirmative only; 
and, as a general rule, affirmative statutes do not repeal 
anything by implication. (Dwarris on Statutes, p. 
427.) This point is not essential to be considered in 
disposing of the present inquiry; but will be, in dis¬ 
posing of the several questions appertaining to consuls, 
vice consuls, and commercial or consular agents. 

Your first inquiry is a double one:—1. Can the Presi¬ 
dent, without the previous advice and consent of the 
Senate, appoint envoys extraordinary in the place of 
the present ministers resident? 2. Can he so appoint a 
secretary of legation to each of them ? 

The solution of this doubt demands careful reflection. 

The enactment-phrase of the act is: From and after a 
certain day, the President shall , by and with the advice 
and consent of the Senate, appoint. 

Now, it is obvious to say, in the first place, that the 
words “by and with the advice and consent of the 
Senate,” here inserted, do not limit or impair any 
power of appointment or of nominal designation, 
which the President possesses under the Constitution. 
For instance, it is not in the power of Congress, by 
whatever terms of enactment, to take away any such 
power as the Constitution may give him, to change the 
mere title of a minister, or to make temporary appoint¬ 
ments during the recess of the Senate. All expres¬ 
sions in a statute are to be so construed as to give them 
constitutional force if it be possible, ut res magis valeat 
quam pereat . Here the words employed have a mean¬ 
ing well settled by their statute-use in other cases, 
which is, to negative the idea that any of the ministers 
mentioned in the act are intended to be such inferior 


61 


officers, the appointment of which may be vested by 
Congress u in the President alone, in the courts of law, 
or in the heads of departments.” 

In the second place, the words “from and after” 
seem obviously to intend only to denote the day when 
the effect of the act, whatever that effect is determined 
to be, shall commence. 

In the third place, the word “shall” must be con¬ 
strued to signify “may;” for Congress cannot by law 
constitutionally require the President to make removals 
or appointments of public ministers on a given day, or 
to make such appointments of a prescribed rank, or to 
make or not make them at this or that place. He, with 
the advice of the Senate, enters into treaties; he, with 
the advice of the Senate, appoints ambassadors and 
other public ministers. It is a constitutional power to 
appoint to a constitutional office, not a statute power 
nor a statute office. Like the power to pardon, it is 
not limitable by Congress; which can as well say that 
the President shall pardon all offences of a certain 
denomination and no others, as to say that he shall 
appoint “public ministers” of the grade of “envoy 
extraordinary” and no others. He may with advice of 
the Senate appoint an ambassador, a commissioner 
plenipotentiary, a minister resident, a charge d’affaires, 
a special agent, a secretary of embassy, a secretary of 
a minister plenipotentiary, notwithstanding the lan¬ 
guage of this act, just as, in past times, he appointed 
a minister resident, a charge d’affaires, a commissioner 
plenipotentiary, without, nay, in seeming contradiction 
with, authorizing provisions of acts of Congress. And, 
as we are not by construction to assume that a legisla¬ 
tive act intends any unconstitutional thing when its 


62 


words can be so construed as to mean a constitutional 
thing, we are therefore not to read this act as requiring 
the President to appoint and maintain a minister of 
the rank of envoy extraordinary at the courts of Lon¬ 
don, Paris, St. Petersburg, Madrid, Mexico, Copen¬ 
hagen, regardless of what may, in his judgment and 
that of the Senate, be the necessities or interests of 
the public service; nor to read it as forbidding him 
to leave either of those legations, or any other, in the 
hands of a mere charge d’affaires. 

Nay, if this unconstitutionally of legislation could 
be intended as the purpose of the act, then it is not 
couched in apt language to convey such intendment. 
It contains no phrase or word of universal inclusion 
or universal exclusion of rank, or even of perpetuity 
or continuity of rank or appointment. It says that 
the President shall , on and after a certain day, appoint 
a certain minister; it does not say he shall do this 
continually thereafter and at all times. It does not say 
there shall at all times be a minister of the United 
States at London of a certain grade, and never a minis¬ 
ter of any other grade. And surely, if these things 
had been the intention of the act, it would have let fall 
some expression, or at least one word, declaring or im¬ 
plying such purpose of universality, of constancy, of 
perpetuity, of general inclusion or general exclusion. 

No such expression occurring in the context, we are 
not forced, in the construction of the word u shall” to 
reject its apparent meaning by reason of its unconsti¬ 
tutionality. We may stand on the language of the act, 
what it omits to say as well as what it says, and con¬ 
clude that “shall” was not placed here as a word of 
command. 



63 


4 




For it is unreasonable to presume in any circum¬ 
stances, and especially unreasonable to presume on the 
strength of a mere circumstantial and auxiliary verb, 
that Congress intended to enact what is unreasonble; 
as it would be to say,—There shall at all times be a 
minister of a prescribed grade at such a court, regard¬ 
less of contingencies of negotiation and of public honor, 
which may nappen to forbid the appointment of a full 
minister in a given case, and require that the legation 
be left in the hands of a charge d’affaires, or even that 
all diplomatic relations be suspended; contingencies 
which have actually occurred, and may occur again, in 
our relations with Great Britain, with France, with 
Spain, and with the Mexican republic. Suppose that 
a foreign government refuses to receive a minister from 
the United States: must the President nevertheless 
appoint one ? Or suppose war declared by or against 
us: must we nevertheless have a minister in the country 
with which we are at war? Clearly not. Therefore, 
“shall,” in this context, is a word of tense only, not of 
command. 

These conclusions conform to settled rules of statu¬ 
tory construction, according to which “shall” and 
“may” are convertible words, and either of them rep¬ 
resents the other, in obedience to the context, the 
general sense of the statute, and its relation to pre¬ 
existing law. (Dwarris on Statutes, pp. 474, 604.) 

This reasonable construction of the word “shall” is 
confirmed by the tenor and phraseology of a section of 
the act of the same session of Congress making appro¬ 
priations for the civil and diplomatic service, (the 3d,) 
which enacts that the new salaries of envoys extraordi¬ 
nary may, on the day when the new provisions take 


04 


effect, be allowed u to such as may be in office on that 
day without reappointment which is beyond all cavil 
equivalent to saying that it was not the intention of 
the law to require reappointments on that day; for, 
otherwise, the expression quoted, nay, the whole 
provision, is quite nugatory, because of impossible 
application. 

The same section of the civil and diplomatic act con¬ 
tains another clause, which leads to a like conclusion. 
It is in these words: “Nor shall such envoys extra¬ 
ordinary and ministers plenipotentiary be required to 
take with them secretaries of legation, unless they 
should be allowed by the President.” This provision 
is very inaccurately drawn up, because the word “such” 
cannot by possibility refer, as the context and grammar 
demand that it should, to the class of envoys previ¬ 
ously mentioned in the section, that is, the envoys now 
in office, but, to have any sense at all, must refer to the 
new class of envoys of whom the section had not pre¬ 
viously made mention. What it means to say is, that 
the new law must not be understood to require the 
President to appoint secretaries of legation. 

It is further to be observed, that there is no phrase 
of the act, except this word “shall,” which professedly, 
or by implication, undertakes to curtail the absolute 
discretion at all times exercised by the President, in 
concurrence with the Senate, to appoint a public min¬ 
ister of such degree as he and they might please for 
any particular mission, or not to appoint any. What¬ 
ever discretionary power in that respect the President 
had before the enactment of this law, he has now. It 
could not be taken from him; for he holds it under 
the Constitution. 


r 4 

65 

Thus we of necessity reach the conclusion, that the 
true and only effect of the act in this relation, is to 
say, that if, and whenever, the President shall, by and 
with the advice and consent of the Senate, appoint an 
envoy extraordinary and minister plenipotentiary to 
Great Britain, or to Sweden, the compensation of that 
minister shall be so much and no more. It could not 
constitutionally say, and does not pretend to say, that 
if, under any contingencies of political relation, it should 
become not possible, not honorable, not expedient for 
the United States to have such a minister of the high¬ 
est rank in Great Britain or in Sweden, and still the 
public honor and interests required the legation to 
be maintained, that it should not be done by means of 
a minister of secondary rank, a minister resident, a 
charge d’affaires, or even an agent without title. It 
does not pretend to say that the President must, con¬ 
trary to the judgment of himself and of the Senate, 
appoint a minister of the highest rank at every court 
of Europe or America. 

In regard to all the possible varieties of diplomatic 
functionaries of the government, the act leaves them 
where they stood before, in respect to their relation to 
the appointing power of the President. 

In regard to compensation, it provides what it may 
be at each of the courts enumerated for a minister 
of a particular grade, or for a secretary, if such minis¬ 
ter or secretary shall happen to have been appointed. 
If the President see fit to appoint, or to retain, at either 
of these courts, a minister of some other grade, for 
instance, minister resident or charge d’affaires, existing 
laws are to be looked into for knowledge of the rate 
of compensation. This act does not profess to repeal, 
9 * 


G6 


nor does it by possible implication in fact repeal, the 
rate of salary previously fixed for any ministers but 
those of the rank of envoy extraordinary. It with¬ 
draws outfit and infit from all; but it leaves unchanged 
the statute compensation of ministers resident and 
charges d’affaires. 

Indeed, as to the salaries of envoys, its precise and 
sole effect is to substitute a scale of compensation, 
varying according to the court, in place of uniformity 
of maximum; increasing the maximumincase the envoy 
be accredited to Great Britain, France, Spain, Russia, 
Austria, Prussia, China, Brazil, Peru, and the Mexican 
Republic; leaving it unchanged if to Turkey and Chile; 
and reducing it if to Switzerland, Rome, the Two 
Sicilies, Sardinia, Belgium, the Netherlands, Portugal, 
Denmark, Sweden, the Argentine Republic, New Gra¬ 
nada, Bolivia, Ecuador, Venezuela, Guatemala, and 
Nicaragua. 

As to the secretaries of legation, the law increases 
the maximum of those at London, Paris, and Madrid; 
it leaves unchanged those of the secretaries at Berlin, 
St. Petersburg, Rio Janeiro, Lima, and Mexico, and of 
a secretary at Vienna, if the President should see fit 
to appoint one there; and it reduces the salaries of 
secretaries, if the President shall choose to appoint 
any, at Berne, Rome, Naples, Turin, Brussels, the 
Hague, Lisbon, Copenhagen, Stockholm, Santiago de 
Chile, Parana, Bogota, Quito, Caracas, Guatemala, and 
Leon. In all these missions, the President may or not 
appoint secretaries in his discretion, whether he ap¬ 
point envoys extraordinary at the same courts or not. 
For the second section of the act is complete per se, 
and its legal effect does not depend on the first, or any 
other section ; and thus it serves to undo the negative 


67 


implication of a previous law, which refuses to provide 
for in advance, though it does not forbid, the allowance 
of a secretary to certain descriptions of ministers. In 
this act, the appropriation for secretaries is wholly a 
question of place. 

Nor, in regard to secretaries now in office, and who 
may be retained, does the change of rate of salary 
follow only on reappointment. The amendatory pro¬ 
vision of the appropriation act disposes of this point 
expressly as to ministers plenipotentiary; but that 
amendment is declaratory, and therefore cannot be held 
to impair the proper effect of other provisions, although 
omitting to declare what is their true construction. 

For in truth, as we have seen, these two sections 
have but one possible import, which is, that after a 
certain day, if in point of fact there be such ministers 
and such secretaries at such and such places, then they 
shall be allowed not exceeding so much compensation. 
It is the rate of compensation of such officers actually 
in office, whensoever appointed, whether a year ago or 
a year hence. They do not need reappointment to 
entitle them to the benefits or subject them to the 
deductions of the new law. If it allow them more 
salary, they may receive it; if it allow them less, they 
can receive that only; and whatever it takes away in 
the nature of outfit, infit, clerk hire, and office rent, it 
takes away absolutely, whether they are in office under 
an old or a new commission. 

Having thus relieved ourselves of the question what, 
in these respects, the act does or does not require, the 
way is clear to consider what, in the discretionary 
exercise of the authority which in the same respects 
it recognises, the Constitution will permit. 


68 


Can the President, on the given day, appoint envoys 
extraordinary in place of the present ministers resi¬ 
dent, without the present concurrence of the Senate, 
that is, in the recess of the Senate ? 

The act of Congress may be considered in two points 
of view, either as measure of salary only to a u public 
minister,” an officer created by the Constitution and 
the law of nations, or as creating a new statute office. 
If, as the general history of the government seems to 
show, it be the former case, then the question of ap¬ 
pointment is determined on grounds wholly independ¬ 
ent of the tenor of the act of Congress. 

If, otherwise, it is the case of a new statute office, 
then it is one created prospectively, to take effect in 
the recess of the Senate. In which view of the subject 
the inquiry must be: Does a provision of this nature 
constitute a vacancy which the President can fill by 
temporary appointment under the Constitution ? 

To take away a present commission, though it be 
only for the purpose of granting a new one to the same 
party, certainly occasions vacancy in office. When Mr. 
Jefferson was recalled from France, a vacancy there¬ 
upon existed in that mission, though he was appointed 
Secretary of State. And so a vacancy happened, to 
which Mr. Bayard was appointed, when Mr. John Q. 
Adams was transferred from Russia to Great Britain. 
I think it must be the same in cases where the inferior 
commission is terminated by any cause, and a superior 
one bestowed on the same person, in whatever branch 
of the service of the government. 

But to avoid controversy on this point, let us suppose 
any one of the present ministers resident to resign or 
to die. What must or may the President then do ? 


69 


But for the new act, no one would hesitate to say that 
he might fill the vacancy by the appointment of another 
minister resident. Nor does the act prevent this; for 
we agree that its provisions in this respect are permis¬ 
sive or facultative only, not imperative; and it annuls 
no pre-existing authority. But, whether or not he can 
appoint a minister resident, can he, if the envoy extra¬ 
ordinary be a new officer, make that appointment? 

I do not perceive, in the opinions of my predecessors, 
any determination of this precise question; but their 
general reasoning on the subject of what is a vacancy, 
would induce the conclusion that appointment may, 
in such case, be made. Mr. Attorney General Wirt, 
(Opinion, October 22, 1823, vol. i, p. 412), Mr. At¬ 
torney General Taney, (Opinion, July 19, 1832, vol. i, 
p. 826), and Mr. Attorney General Legare, (Opinion, 
October 22, 1841, vol. ii, p. 1408), have thoroughly 
demonstrated, and conclusively established, as a doc¬ 
trine of administrative law, that the expression of the 
Constitution,—“all vacancies that may happen during 
the recess,”—signifies, “all vacancies that may happen 
to exist in the recess,” or, “when there happen to be any 
vacancies in the recess;” and they concur in the general 
statement that, howsoever a vacancy happens to exist, 
if it exist, it may be filled by temporary appointment of 
the President. They well agree that it is the true spirit 
of the Constitution to have the offices, which Congress 
indicates to be needful by creating them, filled, though 
provisionally, rather than to remain vacant, or to force 
a special call of the Senate. They contradict most ex¬ 
pressly the supposition, that in order to the existence 
of a vacancy, it needs that an office existing shall have 
been once filled by confirmation of the Senate or com¬ 
mission of the President. 


70 


We have, in the case we are now argumenti gratia 
assuming, an office established by Congress, to come 
into existence on a certain day future in recess of the 
Senate. On and after that day the office as such exists. 
Until appointment be made, it is an office vacant. It is 
a vacancy, which, in the words of Mr. Wirt, u happens to 
exist,” and in the words of Mr. Taney, “happens to be.” 
Consequently, it would seem to be a vacancy, which 
may be temporarily filled by the President. 

There is no question here of usurping authority 
not given by Congress; it is only whether a power 
expressly, and even too absolutely, conferred, can be 
exercised without infringement of the Constitution. 
Not only is the permissive purpose of Congress evinced 
by the whole tenor of this act, but also by a clause of 
the civil and diplomatic act for the next fiscal year, 
which appropriates for the full salary during the whole 
year of all the new envoys and secretaries of legation, 
and omits to make in terms any appropriation what¬ 
ever for the compensation of ministers resident. (Ses¬ 
sion Acts 1854-55, p. 659.) 

I reluct, in view of nil these considerations, to come 
to the conclusion, and cannot allow myself to think, 
that, even if these were statute offices, and the public 
service should require any one of them to be filled 
during the recess, it could not constitutionally be 
done. 

These considerations are presented on the premises 
of the act having created legislative offices. But, in 
my judgment, it neither does nor can create the office 
of envoy extraordinary, either as a general office, or 
as a special office at a particular court. If it did this, 
the President might appoint as for a new office under 


71 


the act. So also in truth he might appoint without 
the act, in all contingencies of the power of appoint¬ 
ment under the Constitution, and he can do no more 
under the act. If a vacancy shall occur in the mission 
at London by the resignation of the present incumbent 
during the recess, the President may fill that vacancy 
by an appointment holding good until the end of 
the next session of the Senate. If a vacancy shall 
occur by resignation or death in either of the missions 
now occupied by a minister resident, it may be filled 
in like manner. If the President choose to leave any 
such mission in the charge of a charge d’affaires, he 
can do so : this act does not stand in the way. If he 
choose to fill the vacancy with a minister of the rank 
of envoy extraordinary, he may do so : this act defines 
the rate of salary, and the appropriation act supplies 
the money for its payment. If he choose to remove 
any of the present ministers, he can do so, and that 
creates a vacancy, which he may fill by temporary ap¬ 
pointment. He may withdraw from either of the 
ministers resident the commission which that minister 
now holds, and fill the vacancy thus created by giving 
to the same or any other party a temporary commis¬ 
sion as envoy extraordinary. But the act of Congress 
neither professes nor attempts to require this; Con¬ 
gress neither enjoins nor directs that the President 
shall remove incumbents or substitute new commis¬ 
sions ; it only signifies in advance, by the new salaries 
which it provides, its concurrence in, and approbation 
of, any such appointment, if either of the contingen¬ 
cies of constitutional power to appoint shall be exer¬ 
cised by the President. It regulates compensation for 
possible appointments, which may happen to be made 


72 


after a certain day, and there its legislative action on 
the appointing power stops. 

But shall the President, during the present recess of 
the Senate, change the personnel , or essentially modify 
the character, of the whole or of two-thirds of the 
diplomatic corps of the United States? He has the 
constitutional power to do it; and Congress, confiding 
in his disposition to exercise conscientiously, his large 
power in this respect, has in substance said, by this 
act and by the corresponding appropriation act,—We 
complete your power to do this by placing in your 
hands the requisite pecuniary means, and we submit 
the whole question, of public policy or exigency in¬ 
volved, to your executive discretion under the Con¬ 
stitution.—What in these circumstances shall be the 
rule of decision and action ? 

The letter of the Constitution and of the acts of 
Congress empowers the President to make a voluntary 
substitution, either of new officers, or new offices, in 
all these cases; but the spirit of the law demands, or 
counsels, that the acts of the President, however right¬ 
ful in the mere sense of power, shall be subject to the 
guidance and control of the combined elements of 
public duty and responsibility. Primary among these 
undoubtedly is the consideration of what the public 
service in itself requires. If that shall appear to the 
President to dictate a change in all the legations, or 
any of them, Congress invites him to make it, and the 
Constitution authorizes it to be made. If, on the other 
hand, no intrinsic exigency of the public service in¬ 
vokes a change, either general or special, then it would 
seem to be most in harmony with the spirit ^ of the 
Constitution, and not incompatible with the intention 


73 


of Congress, to postpone action in a matter of so much 
gravity, and comprehending so important a branch of 
administration, until the proposed appointments or 
reappointments can be made in consultation with the 
Senate. 

Then, also, if any legislative modifications of the 
new law should be deemed convenient, they can be 
introduced in season to bear upon the appointments 
made. 

These considerations, both of argument and conclu¬ 
sion, apply to the new secretaries of legation; and 
more visibly in regard to delay of appointment in 
their case, for the reason that, as to them, the amenda¬ 
tory provision of the civil and diplomatic appropriation 
act contains direct implication of contemplated reserve 
on the part of the President. 

Your second inquiry is,—“If such appointments 
cannot be, or are not, made before the meeting of the 
Senate, and with its advice, can the ministers resident 
remain in office until they shall be superseded by new 
appointments?” I have no doubt that they may: it is 
the legitimate conclusion of all the foregoing premises 
and considerations. 

Your third inquiry is,—“If they remain, can they be 
paid out of the appropriations made in the civil and 
diplomatic bill for the fiscal year, and at what rate ?” 

There is a standing law, heretofore quoted, which 
enacts that-the President shall not allow to any minis¬ 
ter resident a greater sum than at the rate of six thou¬ 
sand dollars per annum, as a compensation for personal 
services and expenses. (Act of August 26, 1842, v 
Stat. at Large, p. 458.) That law is not repealed by 
10 * 


n 


the present act: it remains in full force, to determine 
the maximum salary of a minister resident. 

In the year 1831, when the mission to the Ottoman 
Porte was first established, the minister was of the 
rank of charge d’affaires, with the ordinary salary and 
outfit of that rank. (Act of March 2, 1831, iv Stat. 
at Large, p. 458.) So it continued until the year 
1839, when appropriation was made for the salary of a 
minister resident in Turkey, at the rate of compensa¬ 
tion of the permanent law. (Act of March 3, 1839, 
v Stat. at Large, p. 345.) Since that time the mission 
has been filled with a minister resident, for whom the 
salary of six thousand dollars has been appropriated 
year after year, until the last year. (See, for example, 
the act of August 3, 1854, Session Acts, p. 563.) 

If the President sees fit to continue a minister resi¬ 
dent at the Porte, he has the power, by the general 
law, to allow a salary of not exceeding six thousand 
dollars, and the series of appropriations for the mission 
of late years will justify him in allowing that full 
amount, 

As to the other existing ministers resident of the 
United States, if the President sees fit to continue 
them in office, although he may have the power, under 
the general law, to allow to each a salary of six thou¬ 
sand dollars, because the acts of the last session are 
silent on that point; yet, as the act of March 3, 1853, 
which first contemplated the general change of charges 
d’affaires to ministers resident, (Session Acts 1852-3, 
p. 203), and that of August 4, 1854, which pursued 
the same idea, (Session Acts 1854-5, p. 563), only 
provide for the payment of the salary of a charge 
d’affaires, it seems to me that the President ought to 


continue that salary unchanged, in deference to the 
twice expressed will of Congress. 

As to the fund out of which their compensation shall 
be paid, you intimate a query suggested by the lan¬ 
guage of the appropriation,—“For salaries of envoys 
extraordinary and ministers plenipotentiary of the 
United States, two hundred and sixty-seven thousand 
five hundred dollars,”—which appropriation is con¬ 
fessedly made, as heretofore stated, on the supposition 
of the new commissions being granted by the Presi¬ 
dent. (Session Acts 1854-5, p. 659.) 

I think, in a matter of this nature, the greater in¬ 
cludes the less; and that, even upon the face of the 
provision, it may be so construed as to be subject to 
draft for the payment of the salaries of the ministers 
resident. 

Indeed, there is a previous law, which enacts that 
“ such portion of the appropriations for foreign mis¬ 
sions as shall remain unexpended by reason of reduc¬ 
tion or discontinuance of missions, if any should be 
made, may be applied to the payment of such allow¬ 
ances as shall become necessary in consequence of such 
reduction or discontinuance.” (Act of May 18, 1842, 
no. 195, v Stat. at Large, 486.) This law assumes and 
accepts the fact, of a mission of less rank being subject 
to take the place of a higher, at the discretion of the 
President, and also construes the appropriations for 
missions as applicable to the entire class of ministers 
bearing the lawful commission of the government. 

Before closing this paper, it may not be undesirable 
to add a few words of explanation in regard to one 
mission, that to China, which is peculiar in some 
respects. 


We have seen how the mission originated. The 
first minister, as will appear by reference to the files of 
the Department, held two commissions, one as envoy 
extraordinary and minister plenipotentiary, and the 
other as commissioner plenipotentiary: the purpose 
being that he should act under the former commission 
if he came to be regularly accredited at Peking, and if 
not, under the latter. 

That mission becoming permanently organized on 
the latter basis, the subsequent ministers have each 
received only the appointment of commissioner. 

In reference to this fact it was that Congress, in 
passing the act of August 11, 1848, to carry into effect 
those clauses of the treaty with China which gave to 
our own “authorities” jurisdiction over our own citizens 
in China, (viii Stat. at Large, p. 592), placed that 
authority in the hands of the “commissioner and the 
consuls of the United States duly appointed to reside 
in China.” (ix Stat. at Large, p. 276.) 

Thus, we now have a statute officer, a commissioner, 
to reside in China, with proper judicial functions, which 
are defined and regulated by Congress in virtue of its 
constitutional power to establish legislative courts of 
justice. 

The present act seems to overlook this fact, as also 
the fact that the minister in China is not accredited to 
the court of Peking, when it provides that the Presi¬ 
dent shall appoint an envoy extraordinary and minister 
plenipotentiary to China. 

The President might now, as in the case of the first 
minister, bestow both commissions on the same person, 
as he would probably do if any proper occasion should 


77 


again arise for the appointment of an envoy extraordi¬ 
nary. If, however, no such occasion should arise, he 
may continue, in my opinion, to appoint a commissioner 
only, who, in the analogy of similar cases, can lawfully 
have allowed to him the rate of salary of the last act 
of appropriation, but cannot have outfit or infit. 

You requested me verbally to touch, in passing, on 
such diplomatic or consular provisions of the act, as 
might seem to call for commentary, in addition to the 
specific inquiries noted in the memorandum accom¬ 
panying your letter. I have made the suggestions 
which seemed to me pertinent on the first branch of 
the subject, and propose, at an early day, to reply to 
the residue of your communication, regarding the 
changes made by the law in the consular establishment 
of the United States. 

I have the honor to be, 

Very respectfully, 


Hon. W. L. Maucy, 

Secretary of State. 


C. CUSHING. 


B. 


OPINION OF THE ATTORNEY GENERAL 


ON THE ACT TO REMODEL 

THE DIPLOMATIC AND CONULAR SYSTEMS OF THE UNITED STATES. 


PART II. — CON SULS. 


Attorney General’s Office, 

June 2, 1855. 

Sir : I proceed now to complete my reply to your 
communication of the 17th ultimo, by disposing of so 
much of the same, and of the written memoranda and 
verbal suggestions accompanying it, as relates to the 
consular provisions of the act of the last Congress, 
entitled u An act to remodel the diplomatic and consu¬ 
lar systems of the United States.” 

The act provides, in its 4th section, as follows: 

u Sec. 4. And be it further enacted , That from and after the 
thirtieth day of June next the President of the United States 
shall, hy and with the advice and consent of the Senate, ap¬ 
point consuls for the United States, to reside at the following 
places, who shall receive during their continuance in office 
an annual compensation for their services not exceeding the 
amount specified herein for each, and who shall not he per¬ 
mitted to transact, under the penalty of being recalled and 
fined in a sum not less than two thousand dollars, business 
either in their own name or through the agency of others.” 

The section then goes on to enumerate sundry places, 
in various parts of the world, with salaries annexed to 
each, thus,—“London, seven thousand five hundred 
dollars.” 





79 


The f act provides, in its 5th section, as follows: 

“ Sec. 5. And be it further enacted , That from and after 
the thirtieth day of June next the President of the United 
States shall, by and with the advice and consent of the 
Senate, appoint consuls and commercial agents for the 
United States, to reside at the following places, who shall 
receive, during their continuance in office, an annual com¬ 
pensation for their services not exceeding the amount speci¬ 
fied herein for each, and who shall he at liberty to transact 
business/’ 

And the section then goes on to enumerate sundry 
places, each with salary annexed, some of them thus,— 
“Southampton, one thousand dollars;” and others 
thus,—“ Curacao, five hundred dollars, (commercial 
agent.)” 

The 6th and 7th sections declare that no consul or 
commercial agent, who shall, after the thirtieth day of 
June next, he appointed to any of the places herein 
named , shall be entitled to compensation until he shall 
have reached his post and entered upon his official 
duties; and that the compensation of every consul or 
commercial agent, so appointed to any of the places 
herein named, shall cease on the day that his successor 
shall enter upon the duties of his office. 

The 9th, 10th, 11th, 13th, 14th, 15th, 16th, 17th 
18th, 19th, 20th, 21st, 22d, and 23d sections provide 
various regulations concerning “consuls and commer¬ 
cial agents;” the 9th also, and that alone, mentioning 
“vice consuls” and “consular agents.” 

The 12th section provides as follows: 

“Sec. 12. And be it further enacted , That it shall be the 
duty of consuls and commercial agents to charge the follow¬ 
ing fees for performing the services specified, for which, 
under the penalty of being removed from office, they shall 




80 


account to the government at the expiration of eve^y three 
months, and hold the proceeds subject to its drafts: 

“For receiving and delivering ships’ papers, half cent 
on every ton, registered measurement, of the vessel for 
which the service is performed. 

“For every seamen who may he discharged or shipped at 
the consulate or commercial agency, or in the port in which 
they are located, one dollar; which shall he paid hy the 
master of the vessel. 

“For every other certificate, except passports—the sign¬ 
ing and verification of which shall he free—two dollars.” 

The 28th section declares that the President of the 
United States is “ authorized to bestow the title of con¬ 
sul general” upon any consul in Asia or Africa, “when, 
in his opinion, such title will promote the public in¬ 
terest.” 

The 26th section repeals all acts or parts of acts 
authorizing the payment to consuls of “salaries for 
clerk hire and office rent.” 

The 27th section provides as follows: 

“Sec. 27. And be it further enacted , The provisions of 
this act to take effect from and after the thirtieth of June 
next, any law or laws of the United States to the contrary 
notwithstanding. ’ ’ 

Upon the construction of this act, the first question 
is: Does it supersede the consuls who may be in office 
when it goes into effect? 

My judgment on this point is governed by the con¬ 
siderations stated at length in my letter of the 25th 
ultimo regarding the public ministers of the United 
States, which considerations apply in principle to the 
subject of consuls, and compel me to think that the 
words of enactment,—the President shall from and after 
such a day appoint,—signify only, may appoint,—or 


81 


rather, that such and such compensation shall be allow¬ 
ed, after such day, to such officers of the denomination 
and at the places specified, who shall from and after 
that day be lawfully in office under the Constitution or 
acts of Congress. Of course, the act does not operate, 
either proprio vigore , or by compulsion of the Presi¬ 
dent’s will, so as to supersede any consul. I refer to 
that communication for a full statement of the consider¬ 
ations of constitutional right, or legislative and admin¬ 
istrative action, and of statutory construction, which 
bring me to this conclusion. 

It occurs to me, however, that one of those argu¬ 
ments may have additional force of impression, in being 
presented from another point of veiw. 

The appropriation act provides that the increased 
salaries, which the new act allows from and after a cer¬ 
tain day, may be paid to such existing envoys extra¬ 
ordinary as may not be re-appointed. This clause of 
the appropriation act does not repeal any thing; it only 
assumes that a certain thing may lawfully happen, and 
then declares what is to be intended as the meaning of 
the general act as applicable to that thing in case it 
shall thus happen. That supposed lawful thing is, the 
abstention of the President from re-appointing certain 
envoys extraordinary. Now, this abstention could not 
be lawful if the language of the act, in regard to the 
appointment of envoys from and after a prescribed day, 
implied an obligation imperative on the conscience of 
the President. But the clause of the appropriation act 
admits the legality of the supposed abstention: of 
course the provision of the new law in relation to the 
appointment of envoys, from and after a certain day, 
though absolute in terms, is not to be construed as 
11 * 


82 


imperative, and was not so intended by Congress, either 
in the sense of inclusion of appointment or of exclusion, 
or as regards either time or nominal designation. 

Now, the same precise words, and in the same collo¬ 
cation, are employed in regard to consuls and commer¬ 
cial agents, as well as envoys and secretaries of legation; 
and, according to the settled rules of statutory con¬ 
struction, what they mean in one of the cases they 
mean in all. But we have ascertained that the words 
are not imperative in their relation to envoys. Of course 
they are not imperative in their relation to consuls and 
commercial agents, either in the sense of inclusion of 
appointment or of exclusion, or as regards either time 
or nominal designation. 

Neither the present nor any other law of the United 
States professes to define the difference of meaning be¬ 
tween the terms consul, vice consul, commercial agent, 
and consular agent. Some writers on public law em¬ 
ploy the term “consular agent” as the generic designa¬ 
tion of the class of consular officers, just as u diplomatic 
agent” is often used in a similar generic sense to 
denote all diplomatic officers, the ambassabors and pub¬ 
lic ministers of the Constitution. But the term u con¬ 
sular agent ” certainly has a much narrower acceptation 
in the usage of this government. The language of the 
Constitution, as well when it refers to the appointments 
of our own u consuls,” as when it gives to the courts 
of the United States jurisdiction over foreign “consuls,” 
must be regarded as making this term the true nominal 
designation of the class in our law. 

In the early usage of the government, we had only 
consuls and vice consuls, both appointed by nomination 
to the Senate; but the present act, in the section where 


83 


it speaks of “vice consuls” and “consular agents,” 
seems to regard them as the subordinates of consuls, 
and not requiring nomination to the Senate; and this 
view of their relation is in accordance with existing 
usages. (Moreuil Agents Consulaires, p. 65.) 

The act assumes another description of consular func¬ 
tionary, that of “ commercial agent,” as requiring to be 
commissioned by nomination to the Senate, and there¬ 
fore having the same relation to the laws of the United 
States as “consul;” and, in assigning “commercial 
agents” to the colonial ports of the Netherlands, it re¬ 
cognises the existing usage, of applying this designa¬ 
tion to consular officers appointed to countries where 
no formal recognition of them by exequatur can be 
demanded or obtained by the government. 

Inspection of the language of public treaties will aid 
us to understand the mutual relation of the several 
grades of “consuls.” 

Our first consular convention with France stipulates 
that either government may appoint consuls and vice 
consuls, who may establish “agents” in tne different 
ports or places of their departments, such agents to 
hold by “commission from one of the said consuls.” 
(viii Stat. at Large, p. 108.) 

Our previous treaty of commerce with France pro¬ 
vides that each government may have, in the ports of 
the other, “consuls, vice consuls, agents, and commis¬ 
saries.” (viii Stat. at Large, p. 28.) 

The same phrase occurs in our first treaty of amity 
and commerce with Sweden, (viii Stat. at Large, p. 74.) 

In a subsequent treaty with the same power, (viii 
Stat. at Large, p. 236), the phrase employed is consuls, 
vice consuls, and commercial agents, (agents de com- 


84 


merce.) It also speaks of “consuls and their deputies,” 
(suppleans.) 

In a treaty with Russia, consuls, vice consuls, com¬ 
mercial agents, (agents commerciaux), and commissa¬ 
ries are classed together as consular officers, (viii Stat. 
at Large, p. 448.) 

But the late consular convention with France is the 
most explicit of all on this point. It makes provision 
for consuls general, consuls, vice consuls, and consular 
agents; the vice consuls and consular agents to be ap¬ 
pointed by the consuls general and consuls, and ap¬ 
proved by their government. (Session Acts 1853-54, 
Treaties, p. 117.) It also provides for eleves consuls.” 

This convention is framed with reference to the laws 
of France, by which vice consuls and consular agents 
are the “delegates” of the consuls, (Ordon. 26 Octobre, 
1833, De Clercq, Formulaire, p. 509), and which estab¬ 
lish the office of eleve consul, (Ordon. 20 Aout, 1833, 
ibid., p. 467.) 

We may conveniently regard tho word of the Con¬ 
stitution, u consuls,” as the generic designation of a 
class of public officers existing by public law, and re¬ 
cognised by numerous treaties, who are appointed by 
theft government to reside in foreign countries, and 
especially in seaports, and other convenient points, to 
discharge administrative, and Sometimes judicial, func¬ 
tions in regard to their fellow-citizens, merchants, mari¬ 
ners, travellers, and others, who dwell or happen to be 
in such places; to aid, by the authentication of doeu" 
ments abroad, in the collection of the public revenue; 
and generally to perform such other duties as may 
be assigned to them by the laws and orders of their 
government. 


85 


Congress cannot, by legislative act, appoint or re¬ 
move consuls any more than ministers; but it may in¬ 
crease at will the descriptions of consular officers; it 
may enlarge or diminish their functions; it may regu¬ 
late their compensation; it may distinguish between 
some officers appointable with advice of the Senate, 
and others appointable by the President alone, or by a 
head of department. 

Accordingly, by successive acts of Congress, namely: 
the act of April 14, 1792, (i Stat. at Large, p. 254); 
July 6, 1797,(i Stat. at Large, p. 533); March 2, 1799, 
(i Stat. at Large, p. 690); February 20, 1803, (ii Stat. 
at Large, p. 203); March 3, 1813, (ii Stat. at Large, 
p. 810)); April 20, 1818, (iii Stat. at Large, p. 437); 
March 1, 1823, (iii Stat. at Large, p. 737); March 3, 
1836, (iv Stat. at Large, p. 773); July 20, 1840, (v 
Stat. at Large, p. 394); March 3, 1843, (v. Stat. at 
Large, p. 750); August 11, 1844, (ix Stat. at Large, 
p. 276); July 29, 1850, (ix Stat. at Large, p. 442); 
and by various other incidental provisions of law, 
duties are imposed, and rights conferred, on this class 
of public officers, under the different statute names of 
consuls general, consuls, vice consuls, commercial 
agents, vice commercial agents, and consular agents. 

But all these acts do by no means exhaust the sub¬ 
ject. On the contrary, the important act of 1792 con¬ 
tains a declaratory provision, which is to be understood 
as implied in all other acts of Congress, as follows: 

“The specification of certain powers and duties herein to 
he exercised or performed by the consuls and vice consuls 
(or other consular officers) of the United States, shall not he 
construed to the exclusion of others resulting from the na¬ 
ture of their appointments, or any treaty or convention under 
which they may act.” (Sec. 9.) 


86 


So that, .outside of acts of Congress, the functions of 
consuls are indicated, and their duties and rights de¬ 
fined, first, by many general treaties, conventions, and 
consular conventions, entered into between the United 
States and other sovereign powers. 

Then, like other executive officers of the United 
States, consuls are subject to regulations issued by the 
proper head of department. (See Henshaw’s Manual, 
p. 122; Gratiot vs. United States, iv Howard’s R., p. 
80; United States vs. McDaniel, vii Peters, p. 1; 
Aldridge vs. Williams, iii Howard, p. 9.) 

In addition to which, they possess, by the law of 
nations, many functions, rights, and privileges, other 
than such as are defined by convention, by legislative 
act, or by regulation. 

But their appointment remains unchangeably one of 
the organic powers of the Executive, derived from the 
Constitution, not from any act of Congress. 

In illustration of which is the fact, that in the course 
of the first three years of the administration of Presi¬ 
dent Washington, and prior to the enactment of the 
first act of Congress on the subject, consuls were duly 
appointed and commissioned, mostly during the sitting 
of the Senate, but some in its recess, for the ports or 
islands of Canton, Madeira, Liverpool, Dublin, Bordeaux, 
Nantes, Rouen, Hispaniola, Martinique, Bilbao, London, 
Surinam, Santa Cruz, Lisbon, Morocco, Copenhagen, 
Bristol; and vice consuls for Cowes, Marseilles, Ham¬ 
burg, Havre-de Grace, Fayal. 

It is impossible for me to doubt, therefore, that the 
only effect of the new act in this relation is to say, that, 
as to such consuls or commercial agents as shall, on the 
day prescribed, be lawfully in office at the respective 


87 

places mentioned, the rate of compensation per annum 
thereafter shall be such as the act allows. The Presi¬ 
dent may appoint new consuls at any of the places 
mentioned on that or any other date, if he sees fit, be¬ 
cause this the Constitution empowers him to do; but 
this act neither empowers nor requires him to do it: 
all which in this relation it enacts is rate of compensa¬ 
tion for u consuls” and “commercial agents” at certain 
places, whenever the same shall be, or may have been, 
appointed; that compensation to take effect on the day 
defined by the act. 

Further to show that this act cannot be reasonably 
construed as intending to require the President to do 
what the Constitution, on considerations of public 
policy, has entrusted to the sole discretion of the Execu¬ 
tive, may be mentioned the clause of the act which 
says, in words, that the President shall appoint a “con¬ 
sul ” at Port-au-Prince. This, if done, would have the 
effect, according to international usage, of placing the 
Haytien empire in diplomatic relation with the United 
States. It is not presumed that such was the purpose 
of the law-makers; yet such is the necessary effect of 
the law, if the words “ shall appoint” are mandatory in 
operation. If they are mandatory in any case, they 
are in all: if not mandatory in one case, they are so in 
none. 

Another illustration, which this act itself affords, of 
the necessity of leaving the power of determining when 
and at what places to appoint officers of this class, and 
of what rank to appoint them, where the Constitution 
placed it,—in the hands of the Executive,—is the pro¬ 
vision for establishing “commercial agents” in five of 
the colonies of the Netherlands. This provision has 


88 


apparent reference to the fact, which once existed, 
namely, the refusal of the Netherlands to receive con¬ 
suls in their colonies. But this fact no longer exists; 
for the convention of January 22, 1855, between the 
United States and the Netherlands, and the ratifications 
of which have been exchanged, stipulates for the 
admission of consuls general, consuls, and vice consuls, 
in all the open ports of the transmarine possessions of 
the Netherlands. 

Before passing from this part of the act, it may be 
well to observe that the phrase in the 4th section, 
which forbids certain consuls “to transact * * busi¬ 
ness either in their own name or through the agency 
of others,” cannot be taken literally; for if so, the con¬ 
sul could not have any private interests, or even a 
household, all which involve the transaction of business. 
These words must be construed in reference to the 
mischief, which the history of the acts shows they were 
intended to remedy, namely, “trading as a merchant,” 
which, undoubtedly, the provision prohibits. In the 
6th section the same phrase of undue generality is 
found, but there it is employed in the sense of per¬ 
mission, and therefore does not need to be carefully 
scrutinized. 

In forbidding consuls “to transact business,” that is, 
“to trade as merchants,” the 4th section further says, 
“under the penalty of being recalled and fined in a 
sum not less than two thousand dollars.” 

The phrase here used,—“ under the penalty of being 
recalled,”—like that in the 12th section requiring the 
consul to collect and account for certain fees “under 
the penalty of being removed from office,” is of dubious 
legality. I do not think dismissal from office can be 


enacted by statute as penalty. What court is to try 
and judge? Is the provision designed for the case of 
impeachment? It does not say this. Does the act 
mean to dictate to the President when to remove a 
public officer? That cannot be. The power of re¬ 
moval, and the absolute right to exercise it according 
to his conscience, like the power of appointment, he 
holds by the Constitution. 

Besides, it is neither convenient nor according to 
the analogies of our political system, to consider re¬ 
moval from office the infliction of a legal penalty. A 
penalty is the result of a legal process. Dismissal from 
office belongs to a different class of administrative or 
political considerations, resting in the mere executive 
discretion of the President. 

On the whole, this provision of the statute must be 
deemed inexecutable. 

No provision is made as to the process by which 
this fine of two thousand dollars is to be recovered. 
In the case of another violation of duty, the 20th sec¬ 
tion indicates the remedy by indictment under the act 
of July 20th, 1840. Possibly the same remedy would 
apply here, as the act referred to makes consuls and 
commercial agents indictable “ for all malversation and 
corrupt conduct in office.” (v Stat. at Large, p. 397.) 
I should be more confident on this point, but for the 
fact of the present act singling out the misdemeanor of 
the 20th section as indictable under the act of July 20, 
1840, and thus raising negative inference as to the ap¬ 
plicability of the penal process of that law to the other 
new definitions of misconduct in office. Possibly the 
present fine, if not recoverable by indictment, might 
12 * 


90 


be reached by an action of debt in the name of the 
United States. 

The foregoing observations afford a reply to several 
of the points of inquiry verbally indicated by you, and 
also to three others of the questions of the written 
memorandum of the 17th ultimo, namely: 

Can consuls not newly appointed or reappointed at 
the places named in the act, receive the salaries therein 
affixed to said places respectively ? 

Can the President appoint or retain consuls at places 
where there are now consuls, but with no provision in 
the act for consuls at such places ? 

Can the President, by and with the advice of the 
Senate, appoint consuls at places where there are now 
no consuls, and with no provision in the act for consuls 
at such places? 

To each of these questions, my reply is in the affirma¬ 
tive. The act has operation, in respect of salary, as to 
consuls at the places named, without their being re¬ 
appointed ; such as have been lawfully appointed con¬ 
tinue in office until their present commissions are with¬ 
drawn; and the President can, with concurrence of the 
Senate, appoint consuls at any place whatever, whether 
they be mentioned in the act or not. 

The appropriation act of the last session of Congress 
contains an item of two hundred and seventy-one 
thousand seven hundred and fifty dollars “for the con¬ 
suls of the United States.” All the observations con¬ 
cerning the similar appropriation for envoys, in the 
same act, apply to this appropriation for consuls. 

The next question is,—Can vice consuls and con¬ 
sular agents be appointed after this act goes into 
operation ? 


91 


Undoubtedly. The act provides for consuls or com¬ 
mercial agents at certain places; but does not contain 
any phrase, which, either expressly or impliedly, forbids 
the appointment of consuls or commercial agents at 
other places, or the appointment of vice consuls or con¬ 
sular agents. If it did, the prohibition would be with¬ 
out efficacy. Instead of even professing to do this, 
although the act provides places and salaries for consuls 
and commercial agents only, yet, in the 9th section, it 
expressly recognises, by name, and regulates, in some 
respects, vice consuls and consular agents. While so 
mentioning and regulating them, it leaves untouched 
the law, whatever it is, by which their existence and 
their functions are determined. 

Next comes the question,---What is the operation of 
this act in respect of fees, so far as regards the consuls 
and commercial agents to whom the act gives salary? 

In order to answer this question satisfactorily, it 
becomes necessary to analyze the various pertinent 
provisions of the act. 

In the first place, it does not contain any general 
clause of repeal. At its close, instead of the usual 
phrase,— U A11 acts or parts of acts inconsistent here¬ 
with are hereby repealed, 1 ’—it says,—“The provisions 
of this act to take effect,” on a certain day, “any law 
or laws of the United States to the contrary notwith¬ 
standing.” Of course, the section leaves the question, 
of what the act repeals, to depend on other parts of it, 
and its general tenor. 

In the second place, the act in its general tenor is 
affirmative ; and the established rule of law in this 
respect is, that “ an affirmative statute does not repeal 
a precedent affirmative statute; and if the substance be 


92 


such that both may stand together, they shall have a 
concurrent efficacy.” (Dwarris on Statutes, p. 474.) 
Of course, on the point whether any provision of this 
act repeals by implication of identity of subject-matter 
any provision of previous acts, it will be necessary to 
consider whether the two provisions compared are in¬ 
capable of concurrent efficacy. 

If the act professed to revise the question of consu¬ 
lar regulation as a whole, then it might by implication 
repeal former acts. (Bartlett vs. King, xii Mass. R., 
p. 548; Commonwealth vs. Cooley, x Pick. R., p. 40.) 
But this it does not undertake to do. And law does 
not favor repeal by implication. (Snell vs. Bridge- 
water Manufacturing Company, xxiv Pick., p. 296.) 
Hence, a later statute on a given subject, not repealing 
an earlier one in terms, is not to be taken as a repeal 
by implication, unless it is plainly repugnant to the 
former, or unless it fully embraces the whole subject- 
matter. (Goddard vs. Barton, xx Pick., p. 410.) 

In the third place, the act refers to, and amends ex¬ 
pressly, or adopts for new purposes, parts of previous 
acts in several instances; as the acts of February 28, 
1803, and of July 20, 1840, in the 19th section, and 
that of April 14, 1792, in the 21st. Of course it does 
not in other respects repeal those acts. 

Finally, it contains provisions expressly repealing 
particular things assumed to be allowable by previous 
acts: as allowances of ‘‘clerk hire and office rent,” in 
the 26th section ; “ fees for the signing and verification 
of passports,” in the 13th; and “commissions for re¬ 
ceiving or disbursing wages or extra wages of dis¬ 
charged seamen,” in the 14th. Such cases of express 
repeal in a statute, especially of certain individual 


1)3 


things of a class, are the ordinary implication that all 
other things of the same class remain unrepealed. 

Bearing in mind these premises, let us now see what 
the 12th section of the act says on the subject of fees 
of consuls and commercial agents. 

Its language, we have seen, is very peculiar, as fol¬ 
lows : 

“ Sec. 12. And be it further enacted , That it shall he the 
duty of consuls and commercial agents to charge the follow¬ 
ing fees for performing the services specified, for which, 
under the penalty of being removed from office, they shall 
account to the government at the expiration of every three 
months, and hold the proceeds subject to its drafts : 

“For receiving and delivering ships’ papers, half cent on 
every ton, registered measurement, of the vessel for which 
the service is performed. 

u For every seaman who may he discharged or shipped at 
the consulate or commercial agency, or in the port in which 
they are located, one dollar ; which shall he paid by the 
master of the vessel. 

“ For every other certificate, except passports,—the sign¬ 
ing and verification of which shall he free,—two dollars.” 

This provision imposes, in terms, a special duty on 
“ consuls and commercial agents,” which is, to collect 
certain fees for the benefit of the government. 

Does this provision, in terms, forbid the receipt of 
any other fees ? Undoubtedly not. 

Let us assume the case of some other fee which 
u consuls and commercial agents ” are now permitted 
by statute to demand, and reason upon it: for instance, 
the fees for taking charge of, and paying, or delivering 
over, the effects of decedents, citizens of the United 
States, within their jurisdiction. 

The act of April 14, 1792, entitled “ An act concern- 


94 


ing consuls and vice consuls,” contains the following 
provisions: 

“ For the taking into possession, inventorying, selling, 
and finally settling, and paying, or transmitting as afore¬ 
said, the balance due on the personal estate left by any citi¬ 
zen of the United States, who shall die within the limits of 
his consulate, five per centum on the gross amount of such 
estate. 

u For taking into possession, and otherwise proceeding on 
any such estate, which shall he delivered over to the legal 
representative before a final settlement of the same, as is 
hereinbefore directed, two and a half per centum on such 
part delivered over as shall not he in money, and five per 
centum on the gross amount of the residue/’ 

Is this fee withdrawn by the 12 th section of the 
present act ? I think not. There is no phrase in it 
which hints at such repeal. Was it the design of the 
section to require the collection of certain fees, and 
those only ? If so, the section does not say this: it 
contains not a single word of general exclusion or pro¬ 
hibition. 

Nor can it by any established rule of construction be 
held to imply this; for the enactment that it shall be 
the duty of “consuls and commercial agents” to collect 
and pay over to the government certain particular fees, 
is perfectly compatible with their lawfully demanding 
and receiving other fees, whether the same be or not 
specified as the property of the government. 

Finally, in another part of the act, there is a pro¬ 
vision which, though out of its natural place, and 
thrown in where it is incidently as it were, yet must 
be held to settle this point. 

The 21st section has for its main object to amend 
the act of April 14, 1792, so as to make it the duty 


95 


of the consul, in settling the estate of a decedent, to 
observe any directions regarding the same, which the 
deceased may have given “by will or other writing;” 
and, if such were the direction, then to hand over the 
effects to any appointee of the deceased; in which 
case, to the end of protecting the property from local 
interference, the consul is “to place his official seal” 
on it, and to break and remove the same only at the 
request of the appointee: “he, the said consul or com¬ 
mercial agent, receiving therefor two dollars for each 
seal.” Appended to the enactment of a particular fee 
in a particular case is the following general provision: 
“which, like all other fees for consular service, includ¬ 
ing all charges for extension of protest, as also such 
commissions as are allowed by existing laws on settle¬ 
ment of estates of American citizens by consuls and 
commercial agents, shall be reported to the Treasury 
Department, and held subject to its order.” 

This enactment, which seems to have come in by 
amendment, or at least without recollection of the tenor 
of the 12th section, where it properly belongs, com¬ 
pletes the proof, that the act does not repeal nor mod¬ 
ify any fees or commissions, except those which it 
expressly mentions in that sense, and that it leaves all 
others to stand on existing laws or regulations of the 
Department. 

It remains to consider how the act operates on the 
fees for consular service receivable by consuls and com¬ 
mercial agents. 

By the 12th and 21st sections, together, it is made 
the duty of consuls and commercial agents to hold the 
proceeds of fees for consular service subject to the 
order or draft of the government. 


What shall be done with the proceeds, by the gov¬ 
ernment, the act does not determine. Of course, it 
passes to the account of the unappropriated miscella¬ 
neous funds of the treasury. 

The punishment, indicated for failing thus to account, 
is u the penalty of being dismissed from office.” We 
have seen that this penal provision is without possibility 
of legal effect. 

But another statute supplies the requisite sanction. 
The act, required to be performed, is of such nature, 
as to bring the consuls and commercial agents, of 
whom it speaks, within the purview of the act of Au¬ 
gust 6, 1846, for the better organization of the treasury, 
and for the collection, safe keeping, and disbursement 
of the public revenue, by one of the sections of which, 
the refusal of any person to pay any draft lawfully 
drawn on him for public money in his hands, is de¬ 
clared to be an indictable felony, (ix Stat. at Large, 
p. 63.) 

In this case, also, as in that of the penal provision 
of the 12th section, we may recur in aid to the act of 
April 14, 1792, and to the bond, which that act re¬ 
quires of consuls, conditioned for the true and faith¬ 
ful discharge of the duties of their office according to 
law. (i Stat. at Large, p. 256.) 

But what are “all other fees for consular service,” 
which, by a seeming afterthought of the act, as inci¬ 
dental to a secondary matter of regulation, and with 
iteration of enactment of the words of destination of 
the 12th section, are thus added to the fees, which con¬ 
suls are to exact hereafter as collectors for the govern¬ 
ment? 

It is obvious that many fees, which it has heretofore 


97 


been for the interest of the consul to demand on his 
own account, he must now demand as a mere public 
duty for the sole benefit of government. 

On this point the government, if, in pursuance of 
the understood theory of the act, it aims, by fees col¬ 
lected, to be indemnified for its outlay in the salaries, 
is brought into immediate conflict of interest with 
every consul, and with every person transacting busi¬ 
ness with any consul. The merchant or shipmaster 
will, of course, desire to pay the least he may; and, 
while the consul will have no personal inducement to 
be critical in exacting u fees for consular service,” he 
will incline to inquire what fees, if any, are not consu¬ 
lar, and so not the property of the government. 

In determining this point, we have to collate all 
those disconnected parts of the act, which are correla¬ 
tive in sense, to consider them in subordination to the 
general theory of the act, and to compare them with 
previous laws, and with the regulations of the Depart¬ 
ment. 

I venture to submit only some hasty observations on 
the subject. 

To begin,—the tenor of the act, as we have already 
seen, except in the two or three cases where it makes 
change expressly, leaves untouched the question of the 
particular services for which fees are to be charged. 

I now add that it leaves untouched the existing 
regulations of the Department in such matters, and its 
power to make pertinent new regulations. 

The 12th section takes up the tonnage duty, which 
is to be levied hereafter, in place of a fixed fee, for 
receiving and delivering a ship’s papers; the fee of 
one dollar for every seaman discharged or shipped; 

13* 


98 


and the fee of two dollars “for every certificate;” and 
gives them to the government. 

The 21st section disposes of a prescribed fee of two 
dollars for placing the official seal in certain cases on 
the property of decedents and removing it when duly 
requested, and “all other fees for consular service, in¬ 
cluding all charges for extension of protest, as also 
such commissions as are allowed by existing laws in 
settlement of estates:” all which are given to the gov¬ 
ernment. 

The 12th section forbids making any charge for the 
signing and verification of passports. 

In case of a revision of the table of fees, this item 
deserves re-examination. I think, under the old sys¬ 
tem, citizens of the United States, travelling in foreign 
countries on business or pleasure, as a general thing, 
received from consuls more than they gave in return; 
and that complaints on this point might have come 
with more grace from the consuls themselves. Now, 
at any rate, when consuls are to receive salaries from 
the government, but to collect fees with which to re¬ 
imburse the public treasury, it is not easy to see why 
the whole cost of the consular establishment should be 
cast on merchants and ship owners, to the exemption of 
wealthy travellers who may happen to have occasion 
for the services of consuls. 

The 14th section prohibits commissions on receiving 
or disbursing the wages of discharged seamen, or 
money advanced to seamen in distress. 

The 2 Gth section, in effect, prohibits any allowance 
to consuls on account of “salaries for clerk hire and 
office rent;” but this applies only to a few exceptional 


99 


cases, for which provision has been made in acts of 
appropriation. 

I have compared these provisions of law with the 
table of fees now charged at one of the largest ports 
of commerce, and perused the remarks and queries of 
the consul thereon, as communicated to me by your 
letter of the 1st instant, and submit the following 
annotations: 

1. In the terms of the 12th section, a fee of “ two 
dollars ” is to be exacted, in behalf of the government, 
on “every certificate;” which must be construed to 
mean,—certificate under the seal of the consulate. 

2. The record to be kept by the consul seems to be 
an official duty, and of course the fees therefor belong 
to the government. 

3. The making of copies is a clerical, not a “ con¬ 
sular service,” and whatever may be paid for copies 
belongs to the consul. 

4. Drawing out a power of attorney, bottomry bond, 
will, or any similar service, is a notarial, not a consular 
act; and therefore only the certificate upon it would 
go to account of the government. 

5. I should have said the same of extending a pro¬ 
test, but for the phrase in another part of the act,— 
“ a book for the entry of protests, and in which all 
other official consular acts likewise shall be recorded,”— 
which seems to cover the fact of extending a protest, 
and so to give the fee to the government. If so, there 
should be a regulation-scale of fees according to the 
length of the protest, as in England. 

6. No “commissions” appear to be disposed of by 
the act, except on wages advanced to seamen, which 


100 


are forbidden, and on the estates of decedents, which 
go to the government. 

7. I think the fees collected for the government 
should be in our own coin, or its representative value 
in exchange. 

Without extending these comments, it will suffice to 
suggest, whether it be not expedient that the whole 
subject of consular fees, which the present act leaves 
in its previous indefiniteness, complicated by the new 
provisions, should now be deliberately revised in the 
Consular Bureau of the Department. 

Those acts of a consul for which compensation was 
charged in the old system consisted of two great 
divisions, namely: 

1. Fees taken in respect of matters- wherein the 
consul’s interposition is required by law, such as the 
custody of ships’ papers, discharge of seamen, payment 
of wages or relief-money, certificates of invoices and 
other acts in aid of the revenue laws, and custody of 
the estates of decedents. 

2. Fees taken in respect of matters wherein the con¬ 
sul’s interposition is voluntary on the part of the person 
calling for the service, such as the extension of pro¬ 
tests, the preparation of conveyances, arbitration, or 
bottomry bonds, attending sales, attesting signatures, 
and furnishing copies of documents. 

This division, again, is subdivisible into voluntary 
acts, which are consular, and others which are purely 
clerical or notarial: which distinction is expressly re¬ 
cognised by the regulations of the Department. (Con¬ 
sular Instructions of 1838, ch. viii.) 

To meet all these conditions of the question, other 
governments, in adopting the system of salaries for 


101 


consuls, have been compelled to issue very explicit and 
stringent regulations to secure the full collection of the 
fees due the government. (See the British “Order in 
Council ” of May 1, 1855, London Gazette, May 11, 
1855 ; and the French, “Ordonnance sur les Droits de 
Chancellerie,” 6 Novembre, 1842, in De Clercq, For- 
mulaire, p. 50.) 

How very imperfect our whole system is in the 
matter of these and other details, will be fully appre¬ 
ciated on a perusal of the contents of De Clercq’s 
“Guide des Consulats” and his “Formulaire.” 

Remember, it is certain specified fees, which the act 
of Congress makes it “ the duty ” of the consul to collect. 
Is it his duty to collect other fees ? Unless his duty 
in this respect be more thoroughly defined, it is to be 
feared that comparatively little of those fees, which are 
uncertain in amount, and for voluntary service, or ser¬ 
vice the demand for which is voluntary, will, or can 
be, compulsorily collected. 

The acts of Congress do not contain a table of com¬ 
missions and fees. They prescribe certain fees appli¬ 
cable to some few only of the acts which a consul now 
performs. All other fees, including those of the largest 
production, stand on usage and regulation, and require 
to be reconsidered, in connection with other parts of 
the new system proposed by Congress. 

Next comes another most embarrassing question. 
The act does not profess to abolish vice consuls and 
consular agents; on the contrary, it recognises their 
continued existence. How are these to be paid ? No 
salary is allowed them. Possibly it was the original 
thought of the act to consider a vice consul or consular 
agent as the mere deputy, or locum tenens of the con- 


I 


102 


sul, and to be paid out of the salary of the latter. 
But the act does not say this. 

When a consul is absent from the consular residence 
on leave, it may be that the substitute, who supplies 
his place, ought to receive the salary, or a part of it. 
But the act does not so determine. To the contrary 
of this, in saying, in substance, that, if he be absent 
with permission of the President, his salary,—which if 
he belong to the class of consuls forbidden “to transact 
business,” we may assume to constitute his means of 
subsistence,—shall continue, it implies that the salary 
is not to be enjoyed by his deputy. Perhaps the 
President may order, as the condition of leave to a 
consul, that he shall provide and pay a deputy. It is 
not the general rule, however, in other branches of the 
public service, that a salaried officer, temporarily absent 
from duty on express leave from the President, pays for 
the service of a substitute during such absence. 

The person, thus left by a consul at the consular 
residence in ad interim charge of the consulate, some¬ 
times bears the name of “consular agent;” but that 
designation better describes another class of persons, 
namely, an agent to reside at some other port or place 
depending on the consul. It would seem to be more 
exact to call a substitute employed by the consul on 
the spot his “deputy;” the person employed to fill the 
place temporarily in his absence, “ vice consul;” and to 
apply the name “consular agent” to consular officers 
employed in outposts within a given consular circum¬ 
scription. 

Perhaps the usage of the Department, in applying 
the -name “ consular agent ” to the suppUant of an 
absent consul, officiating as consul interino in the 


103 


absence of tlie consul propietario , grew out of the 
supposition that the vice consuls, by inference from 
the act of 1792, or otherwise, could only be appointed 
by nomination to the Senate: which inference is neg¬ 
atived by the tenor of treaties and of the present act. 
Of course, no obstacle exists to the systematic use of 
the term u consular agent,” according to its proper 
acceptation. 

Numerous ports exist, which are more or less remote 
from the location of any consul, but in which, never¬ 
theless, consular services are needed on the spot. 
Must the consul in every such case go there for the 
special occasion ? If so, he incurs expenses, and leaves 
his own port without his presence. On the other hand, 
if the consular services are not such as must of neces¬ 
sity be performed on the spot, it will be inconvenient 
and expensive for the shipmaster to be compelled to 
leave his ship, and, perhaps with his officers and men, 
as in extending a protest for instance, to repair to the 
place of residence of the consul. 

Under the old system, the convenience and economy 
of all parties were consulted by the appointment of a 
vice consul or consular agent for such out-ports, as at 
Nuevitas, Cienfuegos, and Manzanilla, in Cuba; such 
agent collecting the fees, and retaining the whole or 
part as compensation for his services, and transacting 
the business under the direction of the consul. (Cons. 
Instructions of 1838, chap, iv, s. 7.) 

But the future relations of this part of the general 
subject-matter seem to have escaped the vigilance of 
Congress. The act does not require the consul to 
travel, at his expense, to and fro between the place of 
his consular residence and the outposts of his consular 


104 


circumscription; it does not require him to divide his 
salary with local vice consuls or consular agents; it 
makes no provision whatever for the case. 

All these contingencies are of ordinary occurrence, 
and are provided for in the laws and regulations of 
other governments paying salaries to consuls, as, for 
instance, those of the French empire. 

Besides which, the act does not profess, in its 
enumeration of consuls, to be exclusive; there is no such 
phrase in it as u the following and no other;” it abol¬ 
ishes no consulates; it neither in fact nor in pretension 
deprives the President of the power to retain consuls 
at places where they now exist, but which are not 
named in the act, and to appoint them where they do 
not now exist; as, for instance, to retain the consul at 
Bilbao or Valencia, at Archangel or Helsinfors, or 
the commercial agent at Larache, or appoint a new 
one at the Moluccas, at Setubal, at Trapani, at Newport, 
or at Bergen. But no salary is allowed by the act to 
any such consul. 

How the act shall be construed in this respect, is not 
a matter of light moment; for the consuls and commer¬ 
cial agents of the act do by no means cover all the 
seaports and centres of commerce and resort through¬ 
out the world, which are visited by our merchant ships 
and merchants, or which, in other respects, need the 
presence and service of some consular representative 
of the United States. 

It certainly was not the intention of the act to crip¬ 
ple the commerce of the country by depriving it of 
the benefit of vice consuls and consular agents, or of 
consuls, at any place where, in the judgment of the 
Executive, such an officer is needed. 


105 


Doubtless, at its next session, Congress will, in its wis¬ 
dom, supply these deficiencies by suitable supplemen¬ 
tal legislation. Meanwhile, we must construe the act 
as it stands. 

I think the only admissible interpretation of it, as it 
stands, is to conclude that the consular officers, of what¬ 
ever denomination, for whom salaries are provided by 
the act, are to pay over consular fees which they receive; 
and that all other consular officers, not thus provided 
for, have the right to retain all the lawful fees which 
the several acts, including this, and the regulations of 
the Department allow them to demand. 

This construction involves the inconvenience of some 
of the consular officers being compensated by means of 
fees, and others by salaries; which inconvenience, how¬ 
ever, is of little moment, and need be of but tempo¬ 
rary duration, because easily remediable by Congress. 
Meanwhile the change of relative interest, which the 
new state of facts will introduce between consuls and 
vice consuls, or consular agents, seems to demand some 
corresponding regulations of the Department. 

It may be proper to observe, in this connection, that 
the provision of the act which requires the consuls 
mentioned in it to pay over the lees which they collect, 
cannot apply to the judicial fees receivable by Ameri¬ 
can consuls in China and Turkey, which are not “con¬ 
sular fees,” and cannot be considered by this act as 
withdrawn from the special destination ascribed to 
them by the 17th section of the act of August 11, 1848, 
giving certain judicial powers to consuls of the United 
States in China and Turkey, (ix Stat. at Large, page 
276.) 

Indeed, the consuls at the Barbary ports, and in 
14* 


106 


general in other Mohammedan countries, must not be 
confounded, in respect of functions or of regulations, 
with the consuls established in the countries of Chris¬ 
tendom. Their condition is referable to peculiar doc¬ 
trines of the law of nations; and they are governed in 
many respects by particular treaties and acts of Con¬ 
gress. (See Wheaton’s Elements, by Lawrence, page 
167, note.) 

In my communication of the 25th ultimo, suggestions 
are made, in the relation of public ministers, as to a 
clause in this act which provides, among other things, 
that no other than citizens of the United States who are 
residents thereof, or who shall be abroad in the employ¬ 
ment of the government, shall be appointed as diplo¬ 
matic officers, or as “consuls or commercial agents,” 
and that no other than citizens of the United States 
shall be employed as “vice consuls or commercial 
agents,” or as clerks in the offices of either. 

I reiterate, here, the opinion, that this provision has 
effect as recommendation merely, and no more. The 
President, by the advice of the Senate, has the sole 
and complete power to appoint consuls. 

In respect of clerks, the provision is one of impossi¬ 
ble execution. How are consuls, and clerks of consuls, 
capable of'speaking and writing, in every case, the 
language of the country, to be found among citizens of 
the United States? The government might produce 
such persons, by instituting the grade of “eleves con¬ 
suls;” but it has not done this; and it is not the duty 
of consuls to provide for the education of competent 
linguist clerks, citizens of the United States. Mean¬ 
while, how is the public business to go on ? What is 
to be done by the consuls in France, Spain, Portugal, 


107 


Netherlands, and their colonies; in Germany, Denmark, 
Russia, and in all the countries of Dutch, French, Danish, 
Spanish, Portuguese, America? 

Consider, also, those consuls at places where a small 
salary onl)*is allowed, not sufficient to pay clerk hiro, 
perhaps, and where the consul is not forbidden to trans¬ 
act business, without which he could not live. He 
hires and pays his own clerk. Is he forbidden to em¬ 
ploy as clerks the only persons whom it is morally 
possible for him to employ, and whom he most needs 
in his business? That is the apparent effect of this 
provision; and of necessity, therefore, it must be 
treated as directory only, and not mandatory, on the 
consuls. 

As to the consuls themselves, however expedient it 
be, in general, to fill the consulates and commercial 
agencies with citizens of the United States, yet places 
exist where consular services are necessary, but where 
no American resides, or can be tempted to reside by 
the grant of a mere commission as consul, or appoint¬ 
ment as consular agent. Surely, if the government 
absolutely needs to have a certain service performed 
in a particular place, and there be no American to per¬ 
form it, the service may be performed by a person not 
American. To assume the contrary, is to push consid¬ 
erations of mere policy to the impolitic result of render¬ 
ing the performance of the public service impossible. 

Suppose that, along the whole coast of Norway, there 
can be no consuls, citizens of#the United States. Are 
we therefore to understand, that all the acts of Congress, 
which assure consular aid to shipwrecked or distressed 
mariners, have become a nullity? That is the practi¬ 
cal operation of this provision. 


108 


When the act says, in words, that the government 
shall not employ as consul or consular agent any person 
who is not a citizen of the United States, what it says 
in effect is,—when a citizen of the United States hap¬ 
pens, while abroad, to stand in whatever n#ed of con¬ 
sular assistance, he shall not have such assistance, how¬ 
ever great his necessity, because no ilmerican resides 
there to be made consul or consular agent. 

What would be the legal operation of an act of Con¬ 
gress, enacting directly, that no citizen of the United 
States abroad, who is in distress, or who needs the ser¬ 
vice of a notary or counsel learned in the law, shall be 
relieved or served unless he employs another American, 
whether such American exist or not ? 

Cases occur, also, in which the fittest person for the 
vacant consulate at a given place, and the only person 
who can be induced to accept, is a merchant tempora¬ 
rily residing there, although by birth and education a 
citizen of the United States. Is that person, by such 
abode in a foreign country, disfranchised ? 

That the general disability enacted by the words,— 
“no other than citizens of the United States who are 
residents thereof,”—comprehends residence abroad 
though retaining citizenship, is proved by the general 
structure of the phrase, which requires residence at 
home, in addition to citizenship, as the qualification of 
appointability. That such “residence,” made the con¬ 
dition of disability, includes temporary absence from 
the United States, such absence as does not lose domi¬ 
cil even, is proved by the only exception to such dis¬ 
ability, which consists of those who shall be abroad 
in the employment of the government “at the time of 
their appointment.” How much residence abroad 


109 


disqualifies ? How much at home qualifies ? A year, a 
month, or a day ? 

u A citizen of the United States, not resident thereof 
at the time” signifies, in the context where it here 
stands, one who is in Paris, London, Rome, six months, 
one month, for the purposes of instruction or business. 
Such person is capable of being appointed chief justice 
of the Supreme Court or elected President of the United 
States. Is he incapable of u being appointed” to a 
mere consular agency ? 

The argument of bare legal construction stands 
thus:—Laws can be executed only through the instru¬ 
mentality of agents of execution. There is a body of 
laws for the protection of the rights of citizens of the 
United States in foreign countries, the lawful agents for 
executing which are consuls. Not to appoint consuls 
at the requisite places would be the effectual nullifica¬ 
tion of those laws^ro tanto , just as the omission to ap¬ 
point judges, marshals, commissiQners, and other offi¬ 
cers of the law, in a given district of the United States, 
would have the effect, in that district, to nullify the acts 
of Congress, and produce the suspension therein of all 
rights and remedies based on the Constitution of the 
Union. If the obstacle to such appointments consist in 
the words of a particular statute, which, if construed as 
mandatory, have all the consequences of annulment to 
the laws in force, we necessarily conclude that Congress 
did not intend such words in a mandatory sense. For 
all the laws in pari materia are to be construed together, 
so as from the whole mass to collect the legal intend¬ 
ment of Congress. 

In deference to this recommendatory enactment in 
the nature of mere departmental regulation, or to con- 


110 


• I 

siderations of public policy, the President, in making 
appointment of a citizen, may look to the fact where 
he happens at the moment to be; but he Ips, in my 
opinion, absolute right to select for appointment with¬ 
out regard to that circumstance, subject always to the 
approbation and consent of the Senate. 

It is the constitutional duty of the President to take 
care that the laws be faithfully executed. It is his 
constitutional right to nominate, and, with the advice of 
the Senate, to commission, the agents by whom the 
laws are to be executed. If he cannot find fit agents 
of one description, he may, nay, he must, employ others, 
or be false to his high obligations as the Executive of 
the United States. 

You suggest a question arising on the 14th section 
of the act, which forbids any consul or commercial 
agent to be directly or indirectly interested in any 
“profits derived from * * * sending home ” discharged 
seamen or seamen in distress. 

The act of February 28, 1803, section 4, enacts that 
it shall be the duty of consuls “to provide for the 
mariners and seamen of the United States who may be 
found destitute within their districts respectively, suffi¬ 
cient subsistence and passage to some port in the United 
States, in the most reasonable manner , at the expense of 
the United States;” and penalties are enacted to compel 
masters of vessels belonging to the United States to 
receive such seamen, on request of the consul, and 
transport them to the United States, receiving as com¬ 
pensation “not exceeding ten dollars for each person.” 

(ii Stat. at Large, p. 204.) 

Now, what is to be done in the case of ports (and 
such ports exist) where it happens that many seamen 


Ill 


are discharged from whaling or other vessels, and no 
reasonable or direct means exist for transporting them 
to the United States, except in a vessel belonging to 
the consul, he being of the class allowed to transact 
business? 

We cannot dispose of this question by the rule that 
posterior laws repeal prior incompatible ones. The 
act of 1803, and the acts in amendment of it, are not 
repealed by the present act; on the contrary, they are 
expressly recognised as in full force, and especially in 
this particular matter of the duty of consuls towards 
seamen of the United States. 

I suppose the expression in the act,—“ profits derived 
from * * * sending home ” seamen,—refers to the ten 
dollars paid by the government for every destitute 
seaman transported to the United States. This trans¬ 
portation, with the maximum price allowed, is a burden 
to the shipowner, instead of a profit. If the prohibitory 
provision of the act be applied without exception, it 
will in effect relieve the shipowner in many cases, but 
involve inconvenience to mariners, and additional ex¬ 
pense to the United States. 

I think this provision, which belongs by its nature to 
the class of matters of departmental regulation, must be 
held in law to be directory only, not mandatory, and 
so treated by the Department. 

Question has been suggested, also, as to whether the 
discretion given to consuls, in certain cases, by the act 
of July 20, 1840, regarding the amount of wages to be 
exacted of the shipmaster when the seamen are dis¬ 
charged in foreign ports, still continues. I think it 
does: the present act does not seem to contain anything 
affecting that point. 


112 


There is a provision of the act, referred to already in 
another relation, namely, the main one of the 21st sec¬ 
tion, which demands consideration. It is in the follow¬ 
ing words: 

“ The act of April 14th, 1792, concerning consuls, &c., is 
hereby so amended that, if any American citizen dying 
abroad shall, by will or any other writing, leave special 
directions for the management and settlement by the consul 
of the personal or other property which he may die possessed 
of in the country where he may die, it shall he the duty of 
the consul, where the laws of the country permit, strictly to 
observe the directions so given by the deceased. Or, if such 
citizens so dying shall, by will or any other writing, have 
appointed any other person than the consul to take charge 
of and. settle his affairs, in that case it shall he the duty of 
the consul, when and so often as required by the so-appointed 
agent or trustee of the deceased, to give his official aid in 
whatever way may he necessary to facilitate the operations 
of such trustee or agent, and, where the laws of the country 
permit, to protect the property of the deceased from any in¬ 
terference of the local authorities of the country in which he 
may have died; and to this end it shall also he the duty 
of the consul to place his official seal on all or any portion 
of the property of the deceased as may he required by the 
said agent or trustee, and to break and remove the same seal 
when required by the agent or trustee, and not otherwise.'' 

In the execution of this provision, consuls will need 
to exercise much discretion and care. 

We are to presume this enactment adds to, or other¬ 
wise changes, the pre-existing law; and the question 
is, in what respect ? 

The provisions of the act of April 14, 1792, in rela¬ 
tion to the matter, are, that, in certain cases, if any 
citizen of the United States die abroad, the consul, 
within whose consulate it happens, shall take possession 


113 


of all “personal estate” of the deceased in the country 
where he dies, inventory it, sell it, collect and pay local 
credits and debts, and remit the balance to the treasury 
of the United States, to be held in trust for the legal 
claimants. 

The contingencies, in which the consul may thus 
collect the assets of a decedent, free them from local 
incumbrance, and remit them to the treasury, are three, 
namely: 1. If the deceased shall have left no “legal 
representative” within the consulate; 2, no “partner 
in trade;” and, 3, no “trustee by him appointed to 
take care of his effects.” 

If, at any time before the collection and transmission 
of the assets shall have been completed, the “legal 
representative” of the deceased appears, then the au¬ 
thority of the consul in regard to the estate ceases, and 
the management of it passes into the hands of such 
legal representative. 

The new act provides, in the first place, that if the 
deceased shall “by will or any other writing leave 
special directions for the management and settlement, 
by the consul , of the personal or other property which 
he may die possessed of in the country where he may 
die,” it shall be the duty of the consul to observe those 
directions. 

The act does not say what consul ; but, by collation 
with the pre-existing law, we may construe this to 
mean, the consul within whose consulate the party 
dies. 

The act in effect assumes further, that the consul is 
to take possession of “personal and other property.” 
That is to extend the jurisdiction of the consul beyond 
15* 


114 


what he previously possessed, and into doubtful re¬ 
gions. 

It is perfectly clear that nothing in the previous acts 
empowers the consul to sell any real estate of the de¬ 
ceased ; nor can the provisions of the present act com¬ 
municate such power, even if directed by will; for the 
will would have to be proved and allowed as such in 
order to pass real estate. Nor can the act be construed 
to intend what it apparently says, that in the “manage¬ 
ment and settlement ” of the estate, the consul is to ob¬ 
serve any such directions as the deceased may have 
left “by will or any other writing.” If there be a will 
or any writing possessed of testamentary value, there 
will be an executor or administrator, with the will 
annexed, and he must settle the estate according to 
law. 

I presume the sole effect of this part of the section 
to be, that, in the performance of such acts regarding 
the estate as the consul may, by virtue of the act of 
April 14, 1792, lawfully perform, namely, taking the 
custody of the property, preserving it from waste, 
collecting credits, paying local debts, and selling the 
personal estate for transmission to the treasury, the 
consul shall, in the absence or non-appearance of the 
executor, co-partner, or other “legal representative” 
of the deceased, observe such directions as the latter 
may have given him as to such mere provisional acts 
of consular intervention in the estate. 

The new act provides, in the second place, that “if 
such citizen on dying shall, by will or any other 
writing, have appointed any other person than the 
consul to take charge of and settle his affairs,” as 
“agent or tsustee,” then the consul shall officially aid 


115 


such agent or trustee in his duty, and shall, so far as 
he lawfully may, secure the property of the deceased 
to such agent or trustee, against the interference of 
the local authorities. 

This enactment, like the foregoing one, must be 
understood as having reference only to such acts of a 
lawfully appointed “agent or trustee of the deceased,” 
as any such “agent or trustee” may perform in the 
absence of the “legal representative” of the deceased, 
who, on his appearance, will supersede, not only the 
consul, but any such provisional agent; and in case of 
controversy between such agent or trustee and the 
legal representative of the deceased, it will be the duty 
of the consul to aid the latter, to whom the paramount 
and exclusive right to control the property belongs in 
all circumstances. 

To undertake to carry the authority of the consul 
beyond this point, or in any other direction, would be 
to involve him in hazardous responsibility. 

A citizen of the United States is in almost every sup- 
posable case, a citizen of some State or Territory of 
the United States, or of the District of Columbia. His 
private rights of property and of person depend, all 
but universally, on the law of his State, of his Territory, 
or of the District of Columbia. No act of Congress 
makes general provision for the forms of deeds or wills, 
the distribution of estates of decedents, the regulation 
of contracts, or other things of that nature in the 
affairs of a citizen of the United States. No act of 
Congress can constitutionally do this in regard to the 
citizen of any State, whatever it may do as to the citi¬ 
zen of a Territory, or of the District of Columbia. I, 
for instance, am a citizen of the United States, but a 


116 


citizen, also, of the State of Massachusetts, whose laws 
govern my personal succession. In this respect, Con¬ 
gress has no constitutional, power whatever, except in 
some one of my special relations to the federal gov¬ 
ernment, as in the imposition of taxes, and in the other 
few and limited matters of federal resort. That gene¬ 
ral immunity from federal legislation in ordinary mat¬ 
ters of private interest is my own imprescriptible right: 
it is also the sovereign right of my State. In like 
manner, it is the right of my heirs-at-law. I do not 
lose this right, nor do they, by my temporary absence 
from my State in public employment, or as a merchant, 
or traveller, or any other way, except such as may give 
me citizenship or local domicil in some foreign country, 
and thus place me and my personal rights, and those 
of my succession, under the jurisdiction of such foreign 
country. These positions are the elementary law of 
the condition of citizens of the United States. 

Furthermore, it is the all but universally received 
principle of the international law private, that the real 
estate of a decedent goes to his heirs-at-law, and that 
his personal estate is to be distributed according to the 
law of his domicil. (Story’s Conflict of Laws, ch. ix; 
Foelix, Droit International Prive, p. 161; Phillimore on 
Domicil, ch. i.) This rule cannot be changed by an 
act of Congress; for its continued existence, in so far 
as regards our own citizens, is of the rights of the 
States. 

Now, this provision of the act, in requiring the con¬ 
sul to settle the estate of a decedent according to his 
directions, “ by will or any other writing ,” or to deliver 
up the property to any agent or trustee, whom he may 
have appointed u by will or any other writing ,” makes 


117 


reservation of “ the laws of the country,” and so, per¬ 
haps, by implication, admits exception of the laws of 
the decedent’s domicil, which, in pursuance of the law 
of nations, is respected by every country in Christen¬ 
dom. 

But, after all, this law of the domicil is the great 
exception, which an act of Congress cannot empower 
consuls to disregard, and which they will disregard at 
their proper peril. 

When the present act requires the consul to deliver 
* up the estate of a decedent, dying within his jurisdic¬ 
tion, to an appointee under his “will,” if it mean his 
executor, that the consul may do; because by “will” 
is understood a valid testament, lawfully made and 
executed, by a person who is in all respects compos 
testandi: which question must be judged by the law 
of the decedent’s State. 

But, when the act proceeds to say that the consul 
must obey such directions, regarding the settlement 
and the disposal of the decedent’s “ personal or other 
property,” as the decedent may have given by “will 
or any other writing ,” and deliver it over to, and pro¬ 
tect in the possession of it, the agent, whom the de¬ 
ceased may have appointed “by will or any other 
writing,”—its injunction must be understood with the 
necessary legal reservations, 

Except in the mere temporary settlement, collection, 
and custody of the property of a decedent, no agent 
appointed by will or otherwise, no public officer em¬ 
powered by act of Congress, can safely venture to deal 
with a decedent’s estate; for either that estate has been 
disposed of by lawful testamentary disposition to de¬ 
visees or legatees, or it has become the property of the 


118 


creditors of the decedent, or it has descended upon 
persons legally entitled by marriage or kinship; and, 
in either case, if it be personal property, it must pass 
through the hands of a duly appointed and judicially 
recognised executor or administrator. If we could 
suppose that the act intended to go beyond this, it 
would be necessary to scrutinize the force of the ex¬ 
pression,—“will or any other writing.” 

“Any other writing” signifies some writing, which 
has not the legal effect of a will, or it means nothing. 
In the phrase “will or any overwriting,” the “other” 
excludes a will. 

Whether the alternative in this provision could have 
any possible effect on the estate beyond the legaliza¬ 
tion of acts of temporary custody, would depend upon 
the question what those writings are, other than a will , 
by which a citizen of one of the States of this Union, 
who may happen to die abroad, can impart to his per¬ 
sonal property, after his decease, a direction different 
from that prescribed for intestacy by the law of his 
State. 

What is that writing, not possessed of the legal 
effect of a will of personal assets duly executed by a 
competent person, by means of which a citizen of New 
York or of Louisiana, dying in Paris during a tempo¬ 
rary sojourn there, can take his property out of the 
ordinary course of succession? I think it behooves 
the consul to consider this question well, before he pre¬ 
sumes to follow, in anything beyond the acts of custody , 
settlement , and collection prescribed by the act of April 
14, 1792, directions of the decedent by writing not 
possessed in law of the force of a testamentary dispo¬ 
sition, or directions of any agent of the deceased, 


119 


however nominated, unless that agent be the duly ap¬ 
pointed executor or administrator. Otherwise, the 
consul may be called to account by some creditor of 
the deceased, or by a lawfully appointed executor of 
his, or by his family and heirs-at-law. 

In short, the consul should bear constantly in mind 
that he cannot as consul administer on the estate, nor 
as consul aid any other person in so administering, 
without judicial authorization ; and that the whole ex¬ 
tent of his consular authority is to guard and collect 
the assets of a decedent, and to transmit them to the 
United States, or to aid others in so guarding, collect¬ 
ing, and transmitting them, to be disposed of here 
pursuant to the law of the decedent’s State. 1 

Finally, it may be proper to observe, as to the pro¬ 
vision of the 25th section, by which the President is 
“authorized,” if he see fit, to bestow “the title of con¬ 
sul general” upon any consul of the United States in 
Asia or Africa, that this provision is of doubtful tenor, 
if it be intended to imply that, without it, the Presi¬ 
dent cannot, with advice of the Senate, at any time 
appoint a public officer of the class oi consuls, and 
bearing the title of consul general. 

In illustration of this remark, we have the fact that, 
ia the civil and diplomatic appropriation act of the 
last session of Congress, there is an appropriation for 
the salary of a consul general for the British provinces 
in North America, while the general act supposes that 
consulates of this rank are to be confined to Asia and 
Africa. (Session Acts 1854-55, p. 763.) 

In truth, the office of consul general may be given, 
as a mere titular designation, to imply rank; but it 


1 See Instructions, chap. vi. 


120 


more properly signifies an office with special functions, 
well defined by the law of nations and public usage. 
The consul general superintends and directs, according 
to the instructions, general or special, of his govern¬ 
ment, the consuls within a particular jurisdiction or 
country. (De Cussy, Reglements Consulaires, p. 70; 
Moreuil, Agents Consulaires, p. 18.) 

Such an officer possesses utility, and particular ap¬ 
plication, in foreign countries of extensive but definite 
circumscription, in which there is no proper diplomatic 
representative of the government, such as the several 
great European colonies, or other governments of that 
order, in Asia, Africa, and America. In all the coun¬ 
tries of Europe, and in such of those of America and 
Asia as enter fully into our treaty system, we have, or 
may have, a minister, of whatever title, who is of 
course, by public law, superior in rank to consuls, and 
their medium of communication with the government. 
But, in the foreign dependencies of European powers, 
many of which are in themselves great states, with all 
the mechanism of local authority, and in some cases 
enjoying semf in dependence under the administration 
of a governor, a captain general, or a pacha, it be¬ 
comes necessary that some consular person should have 
power to communicate with the supreme colonial or 
feudatory chief, in behalf of his colleagues and his 
countrymen; and on the consul residing at the seat of 
government will naturally devolve the functions, if not 
the title, of consul general. (De Clercq, Guide des 
Consulats, p. 28.) 

These considerations indicate that the selection and 
appointment of a consul general, even more emphati¬ 
cally than that of consul, must belong to the treaty- 


121 


making power in every political society, the power 
which initiates in foreign relations, and which our Con¬ 
stitution has entrusted to the President in consultation 
with the Senate. 

Permit me to add, in conclusion, that the sugges¬ 
tions, which official duty compels me to make, in re¬ 
gard to so many of the provisions of this act, of careful 
discrimination between what is mandatory in a statute, 
and what is recommendatory only, are made with entire 
general deference and respect for the legislative will of 
Congress. 

It happens continually, that phrases of doubtful 
apparent significancy in the relation of constitutional 
powers, are found in the acts of Congress. It would 
not be convenient to establish, as a rule, that the 
President must refuse to approve all such acts, however 
useful and just on the whole they may be. It is more 
convenient to follow the customary routine of the gov¬ 
ernment, of reducing any such questionable phrase to 
its true constitutional value by construction, when the 
law comes to be construed and administered. Thus, 
when the statute says, that every collector of the cus¬ 
toms shall have authority, with approbation of the 
Secretary of the Treasury, to employ inspectors, (act 
of February 4, 1815, s. 5,) it must be construed to 
mean that the Secretary may appoint and remove such 
inspectors; because the power, here thus in words 
given to collectors, can by the Constitution be devolved 
only on the President or a head of Department. (Mr. 
Legare’s Opinion, March 24, 1843, vol. ii, p. 1577.) 

So when, by the late convention with France, or any 
other, it is said, in words, that officers with consular 
functions and rights, vice consuls, and consular agents, 
16* 


may be appointed by the consul, it means appointed by 
the Secretary of State on the presentation of the con¬ 
sul, and removeable by the same authority. 

By affixing his signature to an act or a treaty con¬ 
taining such phrase, the President does not effect any 
change in the Constitution. He cannot take constitu¬ 
tional power in virtue of any clause of an act of Con¬ 
gress ; nor can he so surrender it. The constitutional 
power of each of the three great departments of the 
government, respectively, belongs to the offices, not 
the officers, and cannot, by any act or words of theirs, 
be withdrawn from the permanent and pervading 
authority of the Constitution. 

We know how difficult a task it is, in remodeling 
any great department of the public service, to give apt 
expression to all which is included in the assumed 
theory of the act. It requires much circumspection 
and reflection to adapt successfully the new parts of 
the system to the old ones; many lacunce will remain 
to be filled up; some things will be disturbed, which 
it was not intended to touch; and when the judge or 
the administrator comes to deal with the act of legisla¬ 
tion as a practical matter, and to review all its pro¬ 
visions in their relation to one another, and to the pre¬ 
existing provisions of law, he finds himself driven, by 
inexorable force of logic, into consequences of con¬ 
struction not anticipated by the legislator. These un¬ 
foreseen consequences increase in degree or number in 
proportion as the legislative body indulges in the pre¬ 
vailing disposition to enter into the field of mere ad¬ 
ministrative regulations, instead of devoting its atten¬ 
tion to the superior and more important and much 
pretermitted duty of prescribing organic rules and 


123 


generic principles of administration. These final re¬ 
flections it seems not out of place to submit, on your 
account as well as my own, in explanation and apology 
of the many questions of construction, which have 
arisen, and could not fail to arise, on a measure of so 
much magnitude as that of remodeling the diplomatic 
and consular systems of the United States. 

Whatever of inevitable imperfection there may be, 
in this initiatory enactment in the right direction, 
will, of course, in due season, receive the attention of 
Congress. 

I have the honor to be, 

Very respectfully, 

C. CUSHING. 


Hon. W. L. Marcy, 

Secretary of State. 


c. 


OPINION OF THE ATTORNEY GENERAL 

ON 

CONSULAR MARRIAGES. 


The following opinion, given at the request of this 
Department, and which receives its sanction, by Hon. 
C. Cushing, Attorney General of the United States, on 
the law of marriage, so far as it relates to its celebra¬ 
tion by United States officers, and more especially 
consuls, and treating incidentally of the nature of the 
consular office, and the duties devolving upon it, is here 
inserted for the information and guidance of the United 
States consular agents. 

Attorney General’s Office, 

November 4, 1854. 

Sir: Your communication of the 3d instant states 
that it is the practice, to some extent, of the consuls 
of the United States abroad to marry parties, either 
citizens of the United States or not, and this without 
observance of the laws of the particular place regarding 
marriage,—and suggests the inquiry whether such 
marriages are valid in the United States, either as to 
the personal status of the parties themselves and their 
issue, or as to any of the rights of property depending 
on the matrimonial relation. 

This inquiry belongs to international law private , 
as distinguished from international law public: that 




125 


is to say, it regards, not the relations of nations among 
themselves, but the relations of individuals to the laws, 
civil or criminal, of different nations. (Foelix, Dr. Int. 
Prive, tit. prel.) 

The different States of Christendom are combined, 
by religious faith, by civilization, by science and art, 
by conventions, and by usages or ideas of right having 
the moral force of law, into a community of nations, 
each politically sovereign and independent of the other, 
but all admitting much interchange of legal rights or 
duties. (Yattel, Droit des Gens, Prel. s. 11; Wheaton’s 
Elements, p. 40; Garden, Code dip. de l’Europe, tom. 
i, Int. p. 3.) 

As between themselves, the general rule of public 
law is, that each independent State is sovereign in itself, 
and has more or less complete jurisdiction of all persons 
being, matters happening, contracts made, or acts done, 
within its own territory. (Kluber, Droit des Gens, s. 
21 and passim ; Story’s Conflict of Laws, ch. 2.) 

I say more or less complete, because, although each 
nation possesses its territory as its own, and exercises 
jurisdiction within itself, not only as to persons, whether 
subjects or foreigners, their acts and their property 
therein, and in general neither claims itself, nor con¬ 
cedes to others, external jurisdiction, yet each yields 
to the other certain reciprocal rights within itself, 
which are sometimes denominated by the civil law 
term of servitudes of the public law or law of nations. 
(Martens, Precis, s. 83.) 

These privileges, servitudes, or easements of public 
law have grown up either by express convention, or by 
usage founded on consent. (Per Ch. J. Marshal], The 
Exchange, vii Cranch, p. 136.) Among them are the 


12G 


effect which, in certain cases, one State concedes to the 
laws of another in regard to contracts made in the latter, 
and the reciprocal rights conceded of personal residence 
or commercial intercourse, and of the interchange of 
ministers and consuls; which concessions modify to a 
certain degree the hypothetical completeness of the 
internal sovereignty of each nation. 

Hence, in all the discussions of private international 
right, the fundamental and all-pervading distinction 
between the statute personal, or the laws of one’s own 
proper domicil, and the statute real, or the laws which 
are independent of the person, and which regulate in 
a foreign country his acts or interests irrespective of 
his domicil. The personal statute is transitory, and 
follows the person; the real statute is chiefly confined 
to things, which it controls only in the locus rei sitoe, 
or the given territory. (Dalloz, Diet. Juris, s. v. Loi 
Pers.; Proudhon, Des Personnes, tom. i, p. 8.) 

To the regular jurisdiction, however, of each country 
over persons, things, and acts being or done within it, 
there exist, by received public law, certain absolute 
exceptions. These exceptions are the several cases of 
exterritoriality: that is, the various conditions in which 
a person, though abroad, is exempt from the foreign 
jurisdiction, and is deemed to be still within the terri¬ 
tory and jurisdiction of his own country. 

The doctrine of exterritoriality is denounced by 
some speculative publicists as if it were a mere fiction 
of law. (See Pinheiro Ferreira, Droit Public, tom. ii, 
p. 197.) This view of the matter is superficial, for it is 
only a cavil as to the name; and erroneous, because it 
argues upon the name, and not the thing which it 
represents. 


127 


The word “exterritoriality” is a sufficiently definite 
technical designation for the peculiarity of legal condi¬ 
tion already defined as attaching to certain persons 
in a foreign country, to wit, the case of an actual 
sovereign of an independent State, his person, suite, 
residence, and furniture, while he resides or sojourns 
peaceably in a foreign country; a foreign army, whethef 
in peace or war; a ship of war generally, and some¬ 
times a merchant ship in a foreign port, and either of 
them on the high ^seas, in all circumstances; and a 
foreign ambassador. (Wheaton’s EL, p. 139.) 

In all these cases, and expressly in that of foreign 
ministers, the privilege of exterritoriality extends to the 
residence as well as the person of the foreign minister, 
and to certain legal acts performed in his presence. 
(Yattel, 1. 8, ch. 7, 8, 9; Kluber, s. 204; Martens, 
Precis, 1. 7, ch. 5; Foelix, liv. 2, tit. 2, ch. 2, s 4; Ch. 
de Martens, Guide Diplomatique, ch. 5.) 

Such are the rights of an ambassador or other foreign 
minister. But, although consuls are not merely com¬ 
mercial agents, as many authors assert, (Wicquefort, 
Ambas., vol. i, p. 133; Bynkersh. de F. Legat., p. 165; 
Wildman’s Institutes, p. 165); and although they 
undoubtedly have certain of the qualities and some of 
the rights of a foreign minister, (see De Cussy, Regle- 
ments Consulates, sec. 7); still it is undeniable that 
they do not enjoy the privileges of exterritoriality, ac¬ 
cording to the rules of public law received in the United 
States. (Clark vs. Cretico, i Taunton, 106; The Anna, 
ii‘i Wheaton, 446; United States vs. Ravara, ii Dallas, 
297; Viveash vs. Beeker, iii Maule & Sel., 284; Bar- 
buit’s case, Cases Temp. Talb}t, 281; Commonwealth 
vs. Kestoff, v Serg. & R., 545; Durand vs. Halback, i 


128 


Miles, 46; Davis vs. Packhard, vii Peters, 276; S. C., 
vi Wend., 327; S. C., x Wend., 50; Flynn vs. Stough¬ 
ton, v Barb. S. C. R., 115; State vs. De la Foret, ii 
Nott & M., 217; Mannhard vs. Soderstrom, i Bin., 138; 
Hall vs. Young, iii Pick., 80; Sortori vs. Hamilton, i 
Green’s R., 107.) 

* In all the adjudged cases above cited, it is either 
expressly ruled, or the point presented assumes, that 
consuls are subject to the local jurisdiction. The same 
doctrine is recognised in the modern law treatises of 
most authority, whether in the United States or 4n 
Great Britain. (Wheaton’s Elements, p. 293; Kent’s 
Com., vol. i, p. 43; Wildman’s Inst., vol. i, p. 130; 
Flynn’s Brit. Consuls, ch. 5.) 

Notwithstanding the somewhat vague speculations of 
Vattel and some other continental authors on the 
question whether consuls are quasi ministers or not, 
(Mattel, Droit des Gens, 1. iv, ch. 8; De Cussy Regle- 
ments Consulates, sec. 6; Moreuil, Agents Consulates, 
p. 348; Borel, Des Consuls, ch. 3); it is now fully 
established by judicial decisions on the Continent, and 
by the opinions of the best modern authorities there, that 
consuls do not enjoy the diplomatic privileges accorded 
to the ministers of foreign powers; that in their per¬ 
sonal affairs they are justiciable by the local tribunals 
for offences, and subject to the same recourse of execu¬ 
tion as other resident foreigners; and that they cannot 
pretend to the same personal inviolability and exemp¬ 
tion from jurisdiction as foreign ministers enjoy by the 
law of nations. (Foelix, 1. ii, tit. 2, chap. 2, s. 4'; 
Dalloz, Die. de Jurispr., tit. Agents Diplomatiques, no. 
35; Ch. de Martens, Guide Diplomat., s. 83.) 

In truth, all the obscurity and contradiction as to 


129 


this point in different authors arise from the fact that 
consuls do unquestionably enjoy certain privileges of 
exemption from local political obligation; but still 
these privileges are limited, and fall very far short of 
the right of exterritoriality. (Masse, Droit Commer¬ 
cial, tom. i, nos. 438, 439.) 

Thus, in the United States, consuls have a right, by 
the Constitution, to the jurisdiction of the federal 
courts as against those of States. They are privileged 
from political or military service, and from personal 
taxation. In some cases we have by treaty given to 
consuls, when they are not proprietors in the country, 
and do not engage in commerce, a domiciliary and per¬ 
sonal immunity beyond what they possess by the 
general public law; and the extreme point to which 
these privileges have been carried in any instance may 
be seen in the Consular Convention of the 23d of 
February, 1853, between the United States and France, 
(Session Acts 1853-4, p. 114.) 

Having premised this explanation of the exact status 
of consuls by the law of nations, it remains for me to 
deduce from the general doctrine the particular con¬ 
clusions applicable to the special subject of inquiry. 

In regard to the contract of marriage, the general 
principle in the United States is, that, as between per¬ 
sons sui juris, marriage is to be determined by the law 
of the place where it is celebrated. If valid there, 
then, although the parties be transient persons, and the 
marriage not in form or substance valid according to 
the law of their domicil, still it is valid everywhere:— 
with some exceptions, perhaps, of questions of incest 
and polygamy. If invalid where celebrated, it is invalid 
II* 


130 


everywhere. (Story’s Conflict of Laws, s. 113; Bishop 
on Marriage, s. 125.) 

The only exceptions to this last proposition, namely, 
that marriages not valid ;by the lex loci contractus are 
not valid anywhere else, are, first, ki favor of marriage, 
when parties are sojourning in a foreign country where 
the law is such that it is impossible for them to contract 
lawful marriage under it. Secondly, in certain cases 
in which, in some foreign .countries, the local law re¬ 
cognises a marriage as valid when contracted according 
to the law of domicil. Thirdly, where the law of the 
country , goes with the parties, that is, in the contin¬ 
gency of their personal exterritoriality, as in the case 
of an army and its followers invading or taking pos¬ 
session of a foreign country, (Ruding vs. Smith, ii Hag. 
C. R., 371; Huber. Praelec. J. C. de con. leg., 1. i, 
tit. 3, s. 10; J. Yoet. in Dig. 1. xxii, tit. 2); and, per¬ 
haps, of an army in transitu through a friendly state, 
(Wheaton’s EL, p. 140), and of a foreign ship of war 
in the ports of the nation, (The Exchange, vii Cranch, 
p. 136.) 

It folllows by necessary consequence, save in the 
excepted cases enumerated, that a marriage, celebrated 
in any given place, must be celebrated according to 
the law of the place, and by a person whom those laws 
designate, unless the person by whom, or the premises 
in which, it is celebrated, possess the privileges of 
exterritoriality. 

Therefore it may be, according to the opinion of 
Lord Stowell, that the presence of a foreign sovereign 
sojourning in a friendly country, or that of his minister 
plenipotentiary, Qr the act of a clergyman in the chapel 
or hotel of such sovereign or his ambassador, may 


131 


give legality to marriage between subjects of his or 
members of his suite. (Ruding vs. Smith, ii Haggard’s 
C. R., 371; Prentiss vs. Tudor, i Hagg. C. R., 136; i 
Burge on Col. & F. Laws, p. 168.) 

But even such right of a foreign sovereign or his 
ambassador to celebrate a marriage, if it exist, applies 
only to his subjects, countrymen, or suite. Such per¬ 
sons would be married according to the law of their 
domicil, or that of the sovereign or ambassador in 
whose service they are, on the assumption that for all 
the purposes of legal right their domicil goes with 
them, and that they are still at home, and in point of 
law are not in the foreign country where the marriage 
is in fact celebrated. A marriage celebrated by such 
sovereign or his ambassador in a foreign country, be¬ 
tween citizens of that country, or foreigners residing 
there or sojourning there, would derive no force from 
him: it would be null and void, unless legal according 
to the law of the place. 

Consuls, it is still more evident, have no shadow of 
power to celebrate marriage between foreigners. Nor 
can they between their own countrymen, unless express¬ 
ly authorized by the law of their own country; because, 
according to the law of nations, they have not the 
privileges of exterritoriality, like an ambassador. 

That American consuls have no such power is clear, 
because it is not given to them by any act of Congress, 
nor by the common law of marriage as understood in 
the several States. (See Kent vs. Burgess, xi Simons, 
361). And marriage, in the United States, is not a 
federal question, but one of the resort of the individ¬ 
ual States. (Bishop on Marriage, passim.') Hence, it 
is impossible for me to doubt: 


132 


First, that marriages celebrated by a consul of the 
United States in any foreign country of Christendom, 
between citizens of the United States, would have no 
legal effect here, save in one of the exceptional cases 
above stated of its being impossible for the parties to 
marry by the lex loci. 

And, secondly, that marriages celebrated by a con¬ 
sul of the United States, in a foreign country, between 
parties not citizens of the United States, would have 
no legal effect here, unless in case they be recognised 
expressly as valid by the law of the place of contract. 

In countries where the mere consent of the parties, 
followed by copula, constitutes marriage, as in Scotland, 
(McAdam vs. Walker, i Dow’s R, 148; Dalrymple vs. 
Dalrymple, ii Hagg. C. R, 97,) and where the pres¬ 
ence and testimony of any person whatever suffice to 
prove the consent, there a marriage contracted before 
a foreign consul might be valid, not because he is 
consul, but because the consent makes the marriage. 

But, in most countries of Eufope, specific forms of 
law are to be followed, without which there can be no 
valid marriage; and as it appears that the marriages 
which the consuls of the United States have celebrated 
abroad, have in most cases been celebrated between 
persons collected at some seaport for the purpose of 
emigration, and who are not only foreigners as regards 
the United States, but foreigners also as regards the 
place in which the marriage is celebrated, it becomes 
material to consider the question, in the sense of this 
impediment of double alienage, in its relation to the 
law matrimonial of the United States. 

The general rule of our law is to ascribe validity to 
marriages when they are valid at the place of celebra¬ 
tion. 


133 


If the parties to the marriage are at the time actually 
in their own proper domicil, as in the case of Spaniards 
domiciled in Barcelona, and married there, it is clear 
that the local jurisdiction is absolute and complete, and 
that a consul of the United States has no more right to 
celebrate a marriage between such parties there than 
he has to undertake the duties of Captain General. 

Suppose, however, that the parties are foreigners to 
the foreign place, and at the same time not citizens of 
the United States? 

The other governments of Christendom, and especially 
those of Europe, are, it is notorious, much more exact¬ 
ing and punctilious than the United States in the 
application of their own laws of personal status to their 
own subjects when absent from their country. 

AVe may not regard this here, but they do among 
themselves; and therefore it is important to look at 
the legal bearings of a marriage celebrated in one 
European country between the subjects of some other 
government of Europe. 

The general rule there is, that the civil obligations 
of a person follow him into a foreign country, save that 
in £ome countries forms are prescribed, according to 
which a subject may relieve himself of his allegiance 
to his natural sovereign and the consequent civil obli¬ 
gations. It is believed that many of the persons who 
emigrate from Europe to the United States have not 
taken these preliminary steps; and therefore, until 
they shall have acquired a new domicil in the United 
States, and while they are sojourning in some other 
foreign country on their way for, and previous to, their 
embarkation, they must of necessity be still subject 
to the law of their domicil in so far as this law is 


134 


respected by the country of their transit or of their 
temporary sojourn; and the question of the validity of 
their marriage there by a foreign consul must depend 
on this legal condition of the parties in the countries 
of Europe. 

In order to appreciate the legal relations in Europe 
of a marriage between parties foreign to the place of 
marriage, we may take, as a convenient example, the 
state of the law in France. 

In France, of course, all Frenchmen must conform 
to the precise provisions of their own law; nay, as a 
general rule, if they marry abroad, still they must « 
observe certain of the conditions of the Code Civil, in 
order to give effect to the marriage in France. (Code 
Civil, no. 170; Foelix, ubi supra, no. 88.) 

In regard to such foreign marriages of Frenchmen, it 
has been adjudged by the courts of that country, that,— 

1. Frenchmen long established in a foreign country, 
and who have reserved no habitation and have no 
domicil in France, are not held to the forms of public 
notice there required by the Code. (Dalloz, Diet. Jur., 
Mariage, no. 374.) 

2. Generally, all acts appertaining to the civil con¬ 
dition of Frenchmen abroad may be proved by the 
modes of proof practised in the foreign country; and, 
therefore, a marriage may be proved by witnesses, or 
by the certificate of a diocesan, when celebrated in a 
foreign country where no registers of civil condition 
exist conformable to the Code. (Dalloz, ubi supra , 
nos. 346, 356.) 

3. There are no differences of opinion as to the 
point, that Frenchmen who marry abroad must con¬ 
form to the provisions of the Code as to capacity, age, 


135 


consent, and other conditions of substance; but there 
are contradictory decisions and opinions as to the point, 
whether it be or not essential to the validity of such 
marriage that there should have been previous publi¬ 
cation of bans in France; and whether, if this be a 
radical defect, it is curable or not, (Dalloz, ubi supra , 
nos. 357, 375); because the article of the Code (no. 
170) which legalizes a marriage contracted between 
Frenchmen abroad according to the forms used in the 
foreign country, adds, provided ( pourvu ) the marriage 
be preceded by the publication of bans, and do not 
contravene the other conditions of law, as prescribed 
by the 1st and 2d chapters of the 5th title of the Code. 
(See Toullier, Droit Civil, tom. i, nos. 576, 579.) 

4. The Code (art. 47 and 48) provides that any 
civil act of Frenchmen abroad shall be valid if it be 
drawn up in pursuance of the forms of the place, ac¬ 
cording to the rule locus regit actum • or if it has been 
received conformably to the laws by the diplomatic 
agents or consuls of France. It has been doubted 
whether this applies to marriage; though the better 
opinion is that it does. (Dalloz, ubi supra , nos. 362, 
363; Toullier, Droit Civil, tom. i, no. 360; Merlin, 
Repert., Mariage, p. 641.) It is said, however, that if 
one of the parties to a marriage by a French consul 
abroad is French and the other not, then the marriage 
is null, because the consul has no jurisdiction as to the 
party not French, and the marriage may be attacked 
by either party. (Dalloz, ubi supra , nos. 365, 366.) 
In one of the cases where this point was decided, the 
parties possessed an act of marriage, with twenty years 
cohabitation, and two children. (Proudhon, Tr. des 
Personnes, tom. i, note a .) 


136 


. 5. Finally, a marriage contracted in France by a 
foreigner according to the exterior forms prescribed 
by the law would be null, of intrinsic nullity, if the 
foreigner infringed any of the prohibitions of his 
statute personal; that is, of the personal law of his 
domicil. (Foelix, ubi supra , s. 88.) 

These views might be extended in detail to other 
countries of Europe. 

Thus, in the Dutch Netherlands, in addition to the 
conditions of competency and of publication of bans, 
there must be legal contract before the proper magis¬ 
trate, without which the marriage is a nullity. (Van 
der Linden, by Henry, p. 83.) As to this, no excep¬ 
tion is made in favor of any persons whatever, being 
foreigners, or in itinere ) or otherwise. (See Ruding 
vs. Smith, ii Hag. C. R., 371, note.) 

So, in Spain, marriage must be solemnized by pre¬ 
scribed rule, that is, through the intervention of the 
parish priest, or other clergyman with license of his 
ordinary, according to the articles of the Council of 
Trent concerning the reformation of matrimony. (Ta¬ 
pia, Febrero Novis., lib. i, cap. 2; Sala, Derecho real 
de Espafia, lib. i, tit. 4.) 

It is unnecessary to extend these examples. Suffice 
it to say, that in some countries religious or ecclesiastical 
impediments exist; in others where that is not the case, 
the legal conditions of capacity and requisite forms are 
very serious obstacles. A critical examination of the 
law of different countries of Europe would only serve to 
augment the weight of legal objections to the celebra¬ 
tion of marriages by consuls of the United States. 

It may be, that a marriage between foreigners cele¬ 
brated by a consul of the United States abroad, though 


137 


utterly null in the country where it is celebrated, 
might, if the parties emigrate to this country, acquire 
validity in some of the States of the Union, as a mar¬ 
riage proved by repute and by cohabitation following 
consent, according to the old rule of the common law. 
Even then, the certificate of the consul would not 
constitute the marriage; it would serve at most only 
as proof of consent, to be connected with proof of 
cohabitation. 

But the practice of celebrating such marriages would 
be objectionable even then, because it is in fraud of 
the local jurisdiction, and contrary to the dictates of 
international comity, if not to positive law. 

In what precedes, the inquiry has been treated as 
relating entirely to marriages assumed to be legalized 
by consuls of the United States residing officially in 
any of the countries of Christendom. 

For, in regard to states not Christian, although we 
make treaties with them as occasion may require, and 
assert in our intercourse with them all such provisions 
of the law of nations as are of a political nature; yet 
we do not suffer, as to them, that full reciprocity of 
municipal obligations and rights which obtains among 
the nations of Christendom. 

This point is determined very explicitly in our treaty 
with China, which, in the most unequivocal terms, 
places all the rights of Americans in China, whether as 
to person or property, under the sole jurisdiction, civil 
and criminal, of the authorities of the United States, 
(see the Treaty, viii Stat. at Large, p. 592); and Con¬ 
gress has made provision to meet the exigencies of the 
treaty in this respect. (Act of August 11, 1848, ix 
Stat. at Large, p. 276.) 

18 * 


138 


Our treaty with Turkey is less explicit on this point; 
but it expressly ascribes to citizens of the United States 
exterritoriality in criminal matters, (see the Treaty, 
viii Stat at Large, p. 408,) provision as to which is 
made by the above cited act of Congress; and as the 
treaty stipulates how controversies in Turkey, between 
citizens of the United States and subjects of the Porte, 
shall be adjudicated, that is, by the local authorities in 
presence of a representative of the United States; and 
as it stipulates that only a certain class of litigation 
shall be submitted to the Porte; and as it gives to 
Americans in Turkey all the rights of the most favored 
nation, with express reference to “the usages observed 
towards other Franks,”—it might be assumed that the 
doctrine of exterritoriality applies to Americans in Tur¬ 
key, as it certainly does to subjects there of all the 
Christian states of Europe. (Moreuil, Guide des Agents 
Consulaires, tit. 2.) 

Our treaties with the minor Mohammedan govern¬ 
ments of Tripoli, Morocco, Muscat, and Bruni, are 
even less explicit than that with Turkey. Still, it may 
be assumed in regard to them, as a principle of the 
international law of the world, so far as there is any, 
that unless there be express agreement to the contrary, 
no Christian nation admits a full reciprocity of muni¬ 
cipal rights as between itself and any state not Chris¬ 
tian ; and therefore, that in the Mohammedan govern¬ 
ments above enumerated, Americans possess the rights 
of exterritoriality which belong to all other “Franks,” 
that is, the races of independent Christian Europe and 
America. (See Ward’s Law of Nations, vol. ii, passim j 
Kluber, Droit des Gens, s. id.; Wildman’s Institutes, 
vol. i, p. 130.) 


139 


In our treaty with Siam, we have inconsiderately en¬ 
gaged that our citizens being there “shall respect and 
follow the laws and customs of the country in all points” 
(See the Treaty, viii Stat. at Large, p. 455.) I do not 
know how they are to do this, unless they become Pa¬ 
gans “in all points.” That provision of the treaty is, 
in the international relations of the United States, the 
solitary exception, it is believed, to the rule that the 
municipal rights of citizens of the United States are not 
subject to the local law of any state not Christian. 

True, we deal with such states as governments , and 
apply to them, so far as we can, the doctrines of our 
international law. (The Helena, iv Robins. Adm. R., 
5.) But, when we speak of the law of nations, we mean 
the international law of the nations of Christian Europe 
and America. Our treaties with nations other than 
these bring them practically within the pale of our 
public law, but it is only as to political rights: muni¬ 
cipal rights remain as they were. (Wheaton’s Elements, 
p. 44; Poison’s Law of Nations, p. 17; Phillimore’s 
International Law, p. 86.) 

On this point, as on all others in the course of the 
present opinion, English and American authorities are 
cited indiscriminately, because the law of both countries 
maintains the same doctrine in the premises; and Great 
Britain is in advance of, rather than behind, the other 
nations of Christendom, in repelling the municipal 
jurisdiction of communities not Christian. 

The doctrine above enunciated applies to Japan; to 
the minor independent states of Asia and its islands, 
whether Mohammedan, Indo-Chinese, Malay, or what 
others; to the barbaric political communities of Africa; 
and still more to the petty insular tribes of Oceanica. 


140 


Our treaty with the Hawaiian Islands places them on 
the footing of a Christian state, with the municipal 
rights belonging to the international law of Christen¬ 
dom. (ix Stat. at Large, p. 977.) 

Now, in regard to the states not Christian, not only 
the Mohammedan states, but all the rest, it seems to 
me that the true rule is, that contracts of citizens of the 
United States in general, and especially the contract of 
marriage, are not subject to the lex loci , but must be 
governed by the law of the domicil; and that, therefore, 
in such countries, a valid contract of marriage may be 
solemnized, and the contract authenticated, not only by 
an ambassador, but by a consul of the United States. 

The English authorities come to substantially the 
same conclusion, for similar reasons. “ Nobody can 
suppose,” says Lord Stowell, u that whilst the Mogul 
empire existed, an Englishman (in llindostan) was 
bound to consult the Koran for the celebration of his 
marriage.” In most of the Asiatic and African coun¬ 
tries, indeed, law is personal, not local, as it was in 
many parts of modern Europe in the formative period 
of its present organization. Hence, in British India, 
Hindus, Parsis, Jews, Mohammedans, Christians, all 
marry according to the law of their religion. Nay, 
the ecclesiastical law of England goes further than this, 
for it recognises the marriage of Englishmen, celebrated 
according to the English law, that is, by a clergyman, 
in British factories abroad, though situated in Christian 
countries, but countries of the Roman Catholic or Greek 
religion. (Ruding vs. Smith, ii Hagg. C. R., p. 371; 
Kent vs. Burgess, xi Simons, 361.) Indeed, in the 
preceding cases, as in others, the English authorities, 
as we have already seen, lay down the broad rule that 


141 


where, owing to religious or legal difficulties, the mar¬ 
riage is impossible by the lex loci , still a lawful marriage 
may be contracted, and of course authenticated by the 
best means of which the circumstances admit, as in 
many cases of marriages contracted in the East Indies 
and in other foreign possessions of Great Britain. (See 
Catterall vs. Catterall, i Roberts. 580.) 

This doctrine is conformable to the canon law, which 
gives effect to what are called matrimonia clandestina , 
that is, marriages celebrated without observance of the 
religious and other formalities decreed by the Council 
of Trent, (Cavalario, Derecho Canonico, tom. ii, p. 172; 
Escriche, s. v. Matr.,) when contracted in countries 
where, if those decrees were enforced, there could be 
no marriage, (Walter, Derecho Ecclesiastico, s. 292, 
294.) Nay, in such countries, in the absence of a 
priest, there may be valid marriage by consent alone, 
conformably to the canon law as it stood before the 
Council of Trent, either by verba de prcesenti or by 
verba de futuro cum copula , as happened ex necessitate 
rei , under the Spanish law, in remote parts of America. 
Of course, in circumstances like this, a marriage might 
be legalized by a mere military commandant. (Patton 
vs. Phil. & New Orleans, i La. An. R., p. 98.) 

Surely this doctrine applies to the present question; 
for, seeing that by the common law of marriage, as 
now received in all, or nearly all, the States of the 
Union, marriage is a civil contract, to the validity of 
which clerical intervention is unnecessary, (Bishop on 
Marriage, s. 163,) it would seem to follow, at least as 
to all those countries, barbaric or other, in which there 
is in fact no lex loci , or those Mohammedan or Pagan 
countries, in which, though a local law exist, yet Amer¬ 
icans are not subject to it, that there the personal 


142 


statute accompanies them, and the contract of marriage, 
like any other contract, may be certified and authenti¬ 
cated by a consul of the United States. 

But this doctrine does not apply to the countries of 
Europe, or their colonies in America or other parts of 
the world: in all which there is a recognised law of the 
place, and the rule of locus regit actum is in full force. 
There, in my opinion, a consul of the United States has 
no power to celebrate marriage between either foreign¬ 
ers or Americans. 

It appears by the correspondence accompanying your 
communication that, in some parts of Europe, in conse¬ 
quence of poverty or other impediments thrown in the 
way of marriage, there is great prevalence of concu¬ 
binage; that the desire of lawful cohabitation enters 
into the inducements of emigration; and that it be¬ 
comes an object, especially with emigrant females, to 
obtain, before leaving their country, if not a marriage, 
yet an assured matrimonial engagement; and that such 
parties are in the practice of entering into mutual 
promises of marriage, and procuring the contract to 
be certified by the consul of the United States. Such 
a contract would probably give rights of action to the 
parties in this country; it must have a tendency to 
promote good morals, and be particularly advantage¬ 
ous to the party most needing protection—that is, the 
female emigrant; and nothing in our own laws, or in 
our public policy, occurs to me as forbidding it, unless 
it be contrary to the law of the land in which the con¬ 
tract is made. 

I have the honor to be, very respectfully, 

C. CUSIIING. 

Hon. Wm. L. Marcy, 

Secretary of State. 




D. 


CONSULAR MARRIAGES 

AND 

EXTERRITORIALITY OF CONSULS IN CERTAIN COUNTRIES. 


The following communication received from the 
Attorney General, elucidating still further the subject 
of the solemnization of the marriage ceremony by 
United States consuls, and more especially relating 
to the exterritoriality of consuls in Mohammedan and 
Pagan countries, is commended to the attention of 
consuls of the United States for their instruction and 
guidance: 

Attorney General’s Office, 

% July 14, 1855. 

Sir : Your communication of the 10th instant en¬ 
closes to me a despatch from Mr. Ritter, the consul of 
the United States at Frankfort-on-the-Mayn, regarding 
the solemnization of the marriage ceremony by foreign 
consuls, which despatch was induced by the contents 
of my opinion, on that subject, of the 4th of November. 

Mr. Ritter discusses at length, and with much intel¬ 
ligence, the considerations, which, in his judgment, 
render it desirable that consuls in Germany, especially 
at the points of collection or embarkation of emigrants, 
should possess the power to legalize matrimony. There 
is much force in what he says. Nevertheless, it re¬ 
mains indisputable that consuls do not, in fact, possess 
the power ; and that it cannot be imparted to them by 
any act of the Department of State. 




144 


They might possibly acquire it in three ways, name, 
ly,—first, by municipal act of any foreign government 
giving legality to a marriage within it so celebrated, in 
which case there would be nothing in our law, or in 
our public policy, to forbid a consul officiating in that 
relation; secondly, perhaps, specially by treaty, or 
generally by act of Congress. But these are questions 
of political expediency, not of practical jurisprudence. 

Mr. Ritter suggests that, in the opinion referred to, 
notice was not taken of u the difference between con¬ 
suls who are subjects of the state where they reside, 
and those who are not such subjects.” 

Undoubtedly such difference exists, since a subject 
cannot escape his local obligations by means of an ap¬ 
pointment as foreign consul; but that is immaterial to 
the question, because the consul does not, by reason of 
his being a foreigner, become therefore authorized to 
solemnize marriage. If, indeed, being a subject of the 
state, he have power as a local magistrate to solem¬ 
nize marriage, or, being a foreigner, he have the same 
power as clergyman, he may do it; but, in either case, 
not in his capacity of consul. 

Mr. Ritter suggests another point of consideration, 
namely, u the difference between consuls residing in a 
state where there is a minister representing the gov¬ 
ernment by whom they were appointed, and consuls 
residing in a state where is no minister,” and he in 
dicates the peculiar importance of this point in Ger¬ 
many. 

It is true, that in a country where his government 
has no minister, the duties of the consul expand, of 
necessity, into a larger field, because he will be called 
upon to communicate with his own government, or 


145 


with that near which he resides, in matters which 
would otherwise devolve on a minister; but that cir¬ 
cumstance docs not cure his legal incapacity as consul 
to solemnize marriage without authority of the local 
government. 

The United States may, with consent of the other 
party, superadd to the regular duties of consul any of 
those of a minister. 

There are two great classes of cases in which this 
fact exists, and might well be systematized, or at least 
more explicitly recognised in our consular stipulations 
with foreign governments. 

One is, that of the transmarine possessions of sundry 
of the states of Europe. Here, as incidentally intimated 
in my opinion of the second ultimo, on the subject of 
the consular establishment of the United States, many 
cogent reasons dictate that we should insist on the 
concession to our consuls, by such states, of the right 
to address the colonial or provincial governor. There 
is nothing in the law of nations to prevent this. It is 
convenient for all parties. It is a consular right exer¬ 
cised by treaty in the great pashalics of the Turkish 
empire. We have recently made provision to the 
same effect in treaty with a Christian power, namely, 
the Netherlands; and that government having thus 
wisely relinquished its long subsisting scruples on this 
point, we may reasonably expect similar liberality in 
future commercial negotiations with Great Britain and 
with Spain. 

The other class of cases of this nature is that of a 
consul residing near a metropolitan government where 
there is no minister, either because of temporary cessa¬ 
tion, or because inducements have not existed for the 

19 


146 


interchange of diplomatic representatives between such 
government and the United States. In this case it be¬ 
comes the office, perhaps it may be said the right, of 
the consul to place himself in direct communication 
with the political authority of such government. Here, 
as in the other case, the fact occurs, and is of common 
convenience; it is not inconsistent with public law; 
and so far as regards the United States, it has example 
in treaties,—for instance, in our last consular convention 
with France. 

It is a thing of manifest necessity as between us and 
those of the countries of Germany, with which our 
relations are entirely amicable, without calling for per¬ 
manent diplomatic representation. The German Bund, 
though in some features resembling our own federal 
republic, yet differs essentially in this, that, in the for¬ 
mer, the federal authority, in matters of peace and 
war, acts on states, not individuals, and of course each 
state retains the power of foreign representation and 
negotiation. Hence, if we do not see cause to inter¬ 
change ministers, we may yet well reciprocally enlarge 
the consular functions, in our relations with such states 
as Bavaria, Saxony, Wurtemburg, Hanover, the Hes¬ 
sen, the Mechlenburgs, or any other of the members of 
the Bund. 

Meanwhile, it would not in either of these classes of 
cases follow, because a consul of the United States in 
Bavaria, or one of Bavaria in the United States, may 
be admitted to address the government, that therefore 
he becomes a diplomatic personage, with international 
rights as such, and among them that of exterritoriality. 
If his commission be that of consul only, if his public 
recognition be an exequatur , the foreign consul is sub¬ 
ject to the local law in the United States; and our own 


147 


consul in the foreign country, if invested in any case 
with quasi-exterritorial rights, does not derive these 
from the law of nations, but only from the special con¬ 
cession, by general law or otherwise, of the particular 
foreign government. 

If, indeed, the United States see fit, in any case, to 
confer the function of charge d’affaires on their consul, 
either with or without limitation of time, as they may 
lawfully do, that is, to superimpose the office of minis¬ 
ter on that of consul, then he has a double political 
capacity, and, though invested with full diplomatic 
privilege, yet becomes so invested as charge d’affaires, 
not as consul; and the fact of such casual duplication 
of function does not change the legal status of consuls, 
whether they be regarded through the eye of the law 
of nations, or that of the United States. 

Mr. Ritter observes: 

“In Egypt, Tunis, Tripoli, China, the islands of the 
Pacific, the consuls enjoy all the diplomatic privileges. 
The motive is not only in the difference of law and 
religion with ours, but also in the absence of other 
diplomatic representatives.” 

This remark requires qualification. 

In the case of China and Turkey, for instance, our 
consuls have not, qm consuls, any “ diplomatic privi¬ 
leges,” except such as they might have in France dur¬ 
ing the absence of a minister; such exterritorial , not 
diplomatic, privileges, as they really enjoy, they enjoy, 
not because they are consuls, nor because of the ab¬ 
sence of proper diplomatic representatives in those 
countries, for we have them,—but because they are citi¬ 
zens of the United States. And the true explanation 
of the diplomatic rights appertaining to consuls in the 
Mohammedan States, whether independent ones, like 


148 


Morocco and Muscat, or subject to the suzerainty of 
the Porte, like Tripoli, Tunis, and Egypt, and so of the 
Pacific or Indian islands, is, that they are not Christians, 
are not admitted to a full community of international 
law, public or private, with us the nations of Chris¬ 
tendom. 

I might demonstrate historically, what in this place 
it will suffice to affirm, that the institution of consuls, 
in their present capacity of international agents, origi¬ 
nated in the mere fact of differences in law and re¬ 
ligion, at that period of modern Europe, in which 
it was customary for distinct nationalities, coexisting 
under the same general political head, and even in 
the same city, to maintain each a distinct municipal 
government. 

Such municipal colonies, organized by the Latin 
Christians, and especially by those of the Italian repub¬ 
lics, in the Levant, were administered each by its con¬ 
suls, that is, its proper municipal magistrates of the 
well known municipal denomination of ancient Italy. 
Their commercial relation to the business of their 
countrymen was a mere incident of their general 
municipal authority. Such, also, at the outset, was 
the nature of their political relation to other coexist¬ 
ing nationalities around them in the same country, 
and to that country’s own supreme political or mili¬ 
tary powers. 

The consuls of Christian states, in the countries not 
Christian, still retain unimpaired, and habitually exer¬ 
cise, their primitive functions of municipal magistrates 
for their countrymen, their commercial or international 
capacity in those countries being but a part of their 
general capacity as the delegated administrative and 
judicial agents of their nations. 


149 


This condition of things came to be permanent in 
the Levant, that is, Greek Europe and its dependen¬ 
cies, by reason of the tide of Arabic and Tartar con¬ 
quest having overflowed so large a part of the East¬ 
ern empire, and established the Mohammedan religion 
there. But the result was different in Latin Europe, 
because the modern nations, formed in this quarter out 
of the broken fragments of the Western empire, being 
Christian, and thus deriving their religion and their 
civilization from the same fountain-head of Rome, set¬ 
tled into something of approximation to one great 
political community, under the influences, potential 
when combined, of the military power of the Frankish 
or Germanic Emperors, and the moral power of the 
Papal See. Thus it was that the mass of legal ideas, 
which we now call the law of nations, came to exist 
and have authority. It is, in its origin at least, the 
system of public law of Latin or western Europe. 

This imperfect political unity of western Europe 
was obstructed at first by the antagonism of the Celto- 
Romanic and the Germanic races, and was threatened 
with complete dissolution when that original antagon¬ 
ism reappeared in the separation of some of the Ger¬ 
manic populations from the Papal See, under the 
popularly assumed religious title of Protestants. But 
after thirty continuous years of reciprocal devastation 
and slaughter, the states of the old and new faith con¬ 
cluded a truce at least, if not a peace, and agreed, 
while acquiescing in the fact of religious difference, tc 
maintain approximate unity of public law, and thus, 
by subordinating the religious idea to the legal one, to 
live together in some sort, as they have continued to 
do, with only occasional spasms of fanatical intolerance 
breaking out into civil or foreign war. 


150 


At a late period, Russia, though of Greek faith, came 
into the European system of public law, with the less 
difficulty indeed, for the reason that Latin Europe and 
Greek Europe alike nourished the legal traditions of 
the Roman empire, though these be derived in the 
former case from Rome, and in the latter from Con¬ 
stantinople ; it being doubtful which became the most 
barbarized in the dark ages, eastern or western Chris¬ 
tendom,—in which the modern civilization first became 
consolidated,—and which the most frankly accepts, at 
this day, a tolerant legalism as the balance of intolerant 
religionism. 

However this may be, certain it is, that by the com¬ 
bination of Romanic law and Christian faith it is that 
we have come to have a common public law, under 
whose gradual operation claims of private exterritori¬ 
ality soon fell into desuetude among the governments of 
Christendom; Italians in England, and Englishmen in 
Italy, at length submitted to the local law; foreign 
colonial nationalities finally ceased to exist of right; 
their consuls proceeded to sink from the condition of 
municipal functionaries into that of mere commercial or 
semi-diplomatic ones; and thus, in process of time, by 
traditional usage, by positive provisions of local law, 
and by treaty stipulations, the existing legal character, 
with its limited rights, was fixed on the foreign con¬ 
suls mutually accredited in the countries of Christian 
Europe and America. 

In our relations with nations out of the pale of Chris¬ 
tendom, we must and shall retain for our own citizens 
and consuls, though we cannot concede to theirs, the 
rights of exterritoriality. 

Religion is the chief representative sign here, and it 


151 


is an element of the question of public law; because, 
while the different denominations of Christianity may 
continue to sustain, as among themselves, a certain 
degree of imperfect mutual endurance, yet, so fierce is 
religious prejudice on every side, that there is no 
apparent possibility of any half-peace even, as between 
them and other religions, more especially the Moham¬ 
medan. If the former could tolerate the latter, the 
latter could not the former, except in conditions of 
military subjugation as in British India. 

But the critical fact is the difference of law. The 
legislation of Mohammed, for instance, is inseparable 
from his religion. We cannot submit to one without 
also undergoing the other. The same legal inqompati- 
bility exists, for one reason or another, between us 
and the unchristian states not Mohammedan. 

Whereas, Christendom, on the other hand, in all its 
subdivisions of race, nationality, and religion, is the 
common heir of the political ideas, and especially the 
legislation, of the Homan empire; for the Institutes 
and Pandects themselves, though comprising the sum of 
the legal science of Rome, were compiled and promul¬ 
gated at Constantinople, and constitute the broad 
foundation of the jurisprudence, public and private, 
of the whole of Christendom. 

When the countries now Mohammedan shall be re¬ 
subjected to the doctrines of the Roman law, whether 
by the arms of eastern, or the arts of western, Europe, 
is of secondary moment to us, provided it be done,— 
and not until then, can they be admitted to the same 
reciprocal community of private rights with us, which 
prevails in Christian Europe and America. Until that 
event happens, Turkey, and other Moslem States in 


152 


Africa or Asia, may, like China or Japan, enter into 
the sphere of our public law in the relation of govern¬ 
ment to government, but not in the relation of govern¬ 
ment to men. That full interchange of international 
rights is admissible only among the nations which have 
unity of legal thought, in being governed by, or con¬ 
stituted out of, the once dissevered, but since then 
partially reunited, constituents of the Grseco-Roman 
empire. 

I have the honor to be, very respectfully, 

C. CUSHING. 


Hon. Wm. L. Marcy, 

Secretary of State. 


E. 


ACTS OF CONGRESS, 

AND EXTRACTS THEREFROM, 

RELATING TO UNITED STATES CONSULS. 


For convenience of reference by consular agents, a 
few of the more important laws, or extracts therefrom, 
relating to the duties of United States consuls, are 
here inserted. 

Extracts from “ An act concerning consuls and vice consuls,” approved April 
14, 1792.1 

* # * * -X- * 

Sec. 2. Be it enacted , ckc., That they, (consuls and 
vice consuls,) shall have right in the ports or places to 
which they are or may be severally appointed of re¬ 
ceiving the protests or declarations, which such cap¬ 
tains, masters, crews, passengers and merchants, as 
are citizens of the United States may respectively 
choose to make there; and also such as any foreigner 
may choose to make before them relative to the per¬ 
sonal interest of any citizens of the United States; 
and the copies of the said acts duly authenticated by 
the said consuls or vice consuls, under the seal of their 
consulates, respectively, shall receive faith in law, 
equally as their originals would in all courts in the 
United States. It shall be their duty where the laws 
of the country permit, to take possession of the per¬ 
sonal estate left by any citizen of the United States, 
other than seamen belonging to any ship or vessel 
who shall die within their consulate; leaving there 


20 * 


1 i Statutes at Large, 25?>. 




154 


no legal representative, partner in trade or trustee by 
him appointed to take care of his effects, they shall 
inventory the same with the assistance of two mer¬ 
chants of the United States, or for want of them, of 
any others at their choice; shall collect the debts 
due to the deceased in the country where he died, and 
pay the debts due from his estate which he shall have 
there contracted; shall sell at auction after reasonable 
public notice such part of the estate as shall be of a 
perishable nature and such further part, if any, as shall 
be necessary for the payment of his debts, and at the 
expiration of one year from his decease, the residue; 
and the balance of the estate they shall transmit to the 
Treasury of the United States, to be holden in trust 
for the legal claimants. But if at any time before 
such transmission, the legal representative of the de¬ 
ceased shall appear and demand his effects in their 
hands, they shall deliver them up, being paid their 
fees, and shall cease their proceedings. 

For the information of the representative of the de¬ 
ceased, it shall be the duty of the consul or vice consul 
authorized to proceed as aforesaid in the settlement of 
his estate, immediately to notify his death in one of 
the gazettes published in the consulate, and also to the 
Secretary of State, that the same may be notified in 
the State to which the deceased shall belong; and he 
shall also, as soon as may be, transmit to the Secretary 
of State, an inventory of the effects of the deceased 
taken as before directed. 1 

Sec. 3. And be it f urther enacted, That the said con¬ 
suls and vice consuls, in cases where ships or vessels 
of the United States shall be stranded on the coasts of 


1 Ante pp. 


155 


their consulates, respectively, shall, as far as the laws 
of the country will permit, take proper measures, as 
well for the purpose of saving the said ships or vessels, 
their cargoes and appurtenances, as for storing and 
securing the effects and merchandise saved, and for 
taking an inventory or inventories thereof; and the 
merchandise and effects saved, with the inventory or 
inventories thereof taken as aforesaid, shall, after de¬ 
ducting therefrom the expense, be delivered to the 
owner or owners. Provided , That no consul or vice 
consul shall have authority to take possession of any 
such goods, wares, merchandise or other property, 
when the master, owner or consignee thereof is pre¬ 
sent or capable of taking possession of the same. 

Sec. 4. And be it further enacted , That it shall and 
may be lawful for every consul and vice consul of the 
United States to take and receive the following fees of 
office for the services which he shall have performed. 

For authenticating, under the consular seal, every 
protest, declaration, deposition, or other act, which 
such captains, masters, mariners, seamen, passengers, 
merchants or others as are citizens of the United 
States may respectively choose to make, the sum of 
two dollars 

For the taking into possession, inventorying, selling, 
and finally settling and paying, or transmitting as 
aforesaid, the balance due on the personal estate left 
by any citizen of the United States who shall die 
within the limits of his consulate, five per centum on 
the gross amount of such estate. 

For taking into possession, and otherwise proceed¬ 
ing on any such estate which shall be delivered over 
to the legal representative before a final settlement of 


15 (> 


the same, as is hereinbefore directed, two and an half 
per centum on such part delivered over as shall not be 
in money, and five per centum on the gross amount of 
the residue. 1 

And it shall be the duty of the consuls and vice con¬ 
suls of the United States, to give receipts for all fees 
which they shall receive by virtue of this act, express¬ 
ing the particular services for which they are paid. 

Sec. 5. And be it further enacted , That in case it be 
found necessary for the interest of the United States, 
that a consul or consuls be appointed to reside on the 
coast of Barbary, the President be authorized to allow 
an annual salary, not exceeding two thousand dollars, 
to each person so to be appointed: Provided , That 
such salary be not allowed to more than one consul for 

any one of the States on the said coast. 

****** 

Sec. 9. And be it further enacted , That the specifi¬ 
cation of certain powers and duties, in this act, to be 
exercised or performed by the consuls and vice con¬ 
suls of the United States, shall not be construed to the 
exclusion of others resulting from the nature of their 
appointments, or any treaty or convention under which 
they may act. 

* * * * * * 


Extracts from “ An act supplementary to the ‘ Act concerning consuls and vice 
consuls,’ and for the further protection of American seamen,” approved Feb¬ 
ruary 28,1803.2 

Sec. 1. Be it enacted by the Senate and House of 
Representatives of the United States of America in 
Congress assembled , That before a clearance be grant- 

1 Session Acts, 625, sec. 21, act of March. 1,1855; ante, page 112 et aeq 

2 ii Statutee at Large, 203. 



ed to any vessel bound on a foreign voyage, the master 
thereof shall deliver to the collector of the customs, a 
list, containing the names, places of birth and resi¬ 
dence, and a description of the persons who compose 
his ship’s company, to which list the oath or affirma¬ 
tion of the captain shall be annexed, that the said list 
contains the names of his crew, together with the 
places of their birth and residence, as far as he can 
ascertain them, and the said collector shall deliver him 
a certified copy thereof, for which the collector shall 
be entitled to receive the sum of twenty-five cents; and 
the said master shall moreover enter into bond with 
sufficient security, in the sum of four hundred dollars, 
that he shall exhibit the aforesaid certified copy of the 
list to the first boarding officer, at the first port in the 
United States, at which he shall arrive on his return 
thereto, and then and there also produce the persons 
named therein, to the said boarding officer, whose duty 
it shall be to examine the men with such list, and to 
report the same to the collector, and it shall be the 
duty of the collector at the said port of arrival, (where 
the same is different from the port from which the 
vessel originally sailed,) to transmit a copy of the list 
so reported to him, to the collector of the port from 
which said vessel originally sailed: Provided , That 
the said bond shall not be forfeited on account of the 
said master not producing to the first boarding officer, 
as aforesaid, any of the persons contained in the said 
list, who may be discharged in a foreign country with 
the consent of the consul, vice consul, commercial 
agent, or vice commercial agent there residing, signi¬ 
fied in writing, under his hand and official seal, to be 
produced to the collector with the other persons com- 


158 


posing the crew as aforesaid; nor on account of any 
such person dying or absconding, or being forcibly 
impressed into other service, of which satisfactory 
proof shall be then also exhibited to the collector. 

Sec. 2. And be it enacted , That it shall be the duty 
of every master or commander of a ship or vessel, be¬ 
longing to citizens of the United States, who shall sail 
from any port of the United States, after the first day 
of May next, on his arrival at a foreign port, to deposite 
his register, sea letter, and Mediterranean passport, 
with the cousul, vice consul, commercial agent, or vice 
commercial agent, (if any there be at such port;) that 
in case of refusal or neglect of the said master or com¬ 
mander, to deposit the said papers as aforesaid, he 
shall forfeit and pay five hundred dollars, to be re¬ 
covered by the said consul, vice consul, commercial 
agent, or vice commercial agent, in his own name, for 
the benefit of the United States, in any court of com¬ 
petent jurisdiction; and it shall be the duty of such 
consul, vice consul, commercial agent, or vice com¬ 
mercial agent, on such master or commander producing 
to him a clearance from the proper officer of the port, 
where his ship or vessel may be, to deliver to the said 
master or commander all of his said papers: Provided , 
Such master or commander shall have complied with 
the provisions contained in this act, and those of the 
act to which this is a supplement. 

Sec. 3. And be it further enacted , That whenever a 
ship or vessel belonging to a citizen of the United 
States, shall be sold in a foreign country, and her com¬ 
pany discharged, or when a seaman or mariner, a citi¬ 
zen of the United States, shall, with his own consent, 
be discharged in a foreign country, it shall be the duty 


of the master or commander to produce to the consul, 
vice consul, commercial agent, or vice commercial 
agent, the list of his ship’s company, certified as afore¬ 
said ; and to pay to such consul, vice consul, commer¬ 
cial agent, or vice commercial agent, for every seaman 
or mariner so discharged, being designated on such 
list as a citizen of the United States, three months’ pay, 
over and above the wages which may then be due to 
such mariner or seaman, two-thirds thereof to be paid 
by such consul, or commercial agent, to each seaman or 
mariner so discharged, upon his engagement on board 
of any vessel to return to the United States, and the 
other remaining third to be retained for the purpose 
of creating a fund for the payment of the passages of 
seamen or mariners, citizens of the United States, who 
may be desirous of returning to the United States, and 
for the maintenance of American seamen who may be 
destitute, and may be in such foreign port, and the 
several sums retained for such fund shall be accounted 
for with the treasury every six months by the persons 
receiving the same . 1 

Sec. 4. And be it further enacted , That it shall be 
the duty of the consuls, vice consuls, commercial agents, 
vice commercial agents of the United States, from 
time to time, to provide for the mariners and seamen 
of the United States, who may be found destitute with¬ 
in their districts respectively, sufficient subsistence 
and passages to some port in the United States, in the 
most reasonable manner, at the expense of the United 
States, subject to such instructions as the Secretary of 
State shall give; and that all masters and commanders 
of vessels belonging to citizens of the United States, 

i Compare section 14 et seq. of net of March 1, 1855, Session Acts, 624. 


160 


and bound to some port of the same, are hereby re¬ 
quired and enjoined to take such mariners or seamen 
on board of their ships or vessels, at the request of the 
said consuls, vice consuls, commercial agents or vice 
commercial agents respectively, and to transport them 
to the port in the United States to which such ships 
or vessels may be bound, on such terms not exceed¬ 
ing ten dollars for each person, as may be agreed 
between the said master and consul, or commercial 
agent. And the said mariners or seamen shall, if able, 
be bound to do duty on board such ships or vessels 
according to their several abilities: Provided , That no 
master or captain of any ship or vessel shall be obliged 
to take a greater number than two men to every one 
hundred tons burden of the said ship or vessel, on 
any one voyage; and if any such captain or master 
shall refuse the same on the request or order of the 
consul, vice consul, commercial agent or vice com¬ 
mercial agent, such captain or master shall forfeit and 
pay the sum of one hundred dollars for each mariner 
or seaman so refused, to be recovered for the benefit 
of the United States in any court of competent juris¬ 
diction. And the certificate of any such consul or 
commercial agent, given under his hand and official 
seal, shall b e jorima facie evidence of such refusal in 
any court of law having jurisdiction for the recovery 
of the penalty aforesaid . 1 

Sec. 5. And be it further enacted , * * * ; and 

that the Secretary of State be authorized to reimburse 
the consuls, vice consuls, commercial agents or vice 
commercial agents, such reasonable sums as they may 
heretofore have advanced for the relief of seamen, 


1 Ante section 159 et seq. 


161 


though the same should exceed the rate of twelve 
cents a man per diem. 

* * * * * * 

Sec. 7. And be it further enacted , That if any consul, 
vice consul, commercial agent, or vice commercial 
agent, shall falsely and knowingly certify, that pro¬ 
perty belonging to foreigners is property belonging 
to citizens of the United States, he shall, on conviction 
thereof, in any court of competent jurisdiction, forfeit 
and pay a fine not exceeding ten thousand dollars, at 
the discretion of the court, and be imprisoned for any 
term not exceeding three years. 

Sec. 8. And be it further enacted , That if any consul, 
vice consul, commercial agent or vice commercial agent, 
shall grant a passport or other paper certifying that 
any alien, knowing him or her to be such, is a citizen 
of the United States, he shall, on conviction thereof, 
in any court of competent jurisdiction, forfeit and pay 
a fine not exceeding one thousand dollars. 

Seb. 9. And be it further enacted , That all powers 
of attorney executed after the thirtieth day of June 
next, in a foreign country, for the transfer of any 
stock of the United States, or for the receipt of interest 
thereon, shall be verified by the certificate and seal of 
a consul, vice consul, commercial agent, or vice com¬ 
mercial agent, if any there be at the place where the 
same shall be executed; * * * * 


AN ACT authorizing the deposit of the papers of foreign vessels, with the con¬ 
sul of their respective nation. 3d March, 1817. 1 

Be it enacted by the Senate and House of Representa¬ 
tives of the United States of America , in Congress as¬ 
sembled, That the register, or other document in lieu 


21* 


1 iii Statutes at Large, 362. 



162 


thereof, together with the clearance and other papers, 
granted by the officers of the customs to any foreign 
ship or vessel, at her departure from the port or place 
from which she may have arrived, shall, previous to 
entry in any port of the United States, be produced to 
the collector with whom such entry is to be made. 
And it shall be the duty of the master or commander, 
within forty-eight hours after such entry, to deposit 
the said papers with the consul or vice consul of the 
nation to which the vessel belongs, and to deliver to 
the collector the certificate of such consul or vice con¬ 
sul, that the said papers have been so deposited; and 
any master, or commander, as aforesaid, who shall fail 
to comply with this regulation, shall, upon conviction 
thereof in any court of competent jusisdiction, be fined 
in a sum. not less than five hundred dollars, nor exceed¬ 
ing two thousand dollars: Provided , That this act shall 
not extend to the vessels of foreign nations in whose 
ports American consuls are not permitted to have the 
custody and possession of the register and other papers 
of vessels entering the ports of such nation, according 
to the provisions of the second section of the act sup¬ 
plementary to the act “concerning consuls and vice 
consuls, and for the further protection of American 
seamen,” passed the twenty-eighth of February, one 
thousand eight hundred and three. 

Sec. 2. And be it further enacted , That it shall not be 
lawful for any foreign consul to deliver to the master 
or commander of any foreign vessel the register and 
other papers deposited with him pursuant to the pro¬ 
visions of this act, until such master or commander 
shall produce to him a clearance in due form from the 
collector of the port where such vessel has been entered; 


163 


and any consul offending against the provisions of this 
act shall, upon conviction thereof before the Supreme 
Court of the United States, be fined at the discretion 
of the court in a sum not less than five hundred dollars, 
nor exceeding five thousand dollars. 


Extract from “ An act supplementary to and to amend an act entitled ‘ An act 
to regulate the difties on imports and tonnage,’ passed second March, one 
thousand seven hundred and ninety-nine, and for other purposes.” 1 March 1, 
1823. 

* * * * * * 

Sec. 7. Be it enacted , efic., That no goods, wares, or 
merchandize, subject to ad valorem duty, imported as 
aforesaid, and belonging to a person or persons not 
residing at the time in the United States, and who 
shall have actually purchased the same, shall be admit¬ 
ted to entry, unless the invoice be verified by the oath 
of the owner, or one of the owners, certifying that the 
said goods, wares, or merchandise, were actually pur¬ 
chased for his account, or for account of himself and 
partners in the said purchase: that the invoice annexed 
thereto contains a true and faithful account of the 
actual cost thereof, and of all charges thereon, and that 
no discounts, bounties, or drawbacks, are contained in 
the said invoice, but such as have been actually allow¬ 
ed on the same; which said oath shall be administered 
by a consul or commercial agent of the United States; 
or by some public officer duly authorized to administer 
oaths in the country where the said goods, wares, or 
merchandise, shall have been purchased, and the same 
duly certified by the said consul, commercial agent, or 


1 iii Statutes at Large, 729. 



164 


public officer; in which latter case, such official certifi¬ 
cate shall be authenticated by a consul or commercial 
agent of the United States; Provided , That if there be 
no consul or commercial agent of the United States 
in the country from which the said goods, wares, or 
merchandise shall have been imported, the authentica¬ 
tion hereby required, shall be executed by a consul of 
a nation at the time in amity with the United States, if 
there be any such residing there; and if there be no such 
consul in the country the said authentication shall be 
made by two respectable merchants, if any such there 
be, residing in the port from which the said goods, 
wares, or merchandise, shall have been imported. 

Sec. 8. And be it further enacted , That no goods, 
wares, or merchandise, subject to ad valorem duty, 
imported as aforesaid, and belonging to a person or 
persons not residing at the time in the United States, 
who may not have acquired the same in the ordinary 
mode of bargain and sale, or belonging to a person or 
persons who may be the manufacturer or manufacturers, 
in whole or in part, of the same, shall be admitted to 
entry, unless the invoice thereof be verified by the oath 
of the owner, or of one of the owners, certifying that the 
invoice contains a true and faithful account of the said 
goods, wares, or merchandise, at their fair market value 
at the time and place when and where the same were 
procured or manufactured, as the case may be, and of 
all charges thereon; and that the said invoice contains 
no discounts, bounties, or drawbacks, but such as have 
been actually allowed; which said oath shall have been 
duly administered and authenticated in the mode pre. 
scribed in the seventh section of this act. 

* * * -X- 


165 


Sec. 22. And be it further enacted , That, for every 
verification and certificate, made under this act, before 
a consul or commercial agent of the United States, such 
consul or commercial agent shall be entitled to demand 
and receive, from the person making the same, a fee of 
two dollars: Provided , Each shipper shall have the 
right to include all articles shipped by him in the same 
invoice. 1 


AN ACT to prescribe the punishments of consuls, commercial agents, and others, 
in certain cases. March 3, 1835. 

Be it enacted , &c , That if any consul, vice consul, 
commercial agent, or vice commercial agent, shall 
knowingly and falsely certify to any invoice, or other 
papers, to which his certificate is by law authorized or 
required, he shall, on conviction thereof, in any court 
of competent jurisdiction, forfeit and pay a fine not 
exceeding ten thousand dollars, at the discretion of the 
court, and be imprisoned for a term not exceeding 
three years, at the like discretion. 2 


AN ACT in addition to the several acts regulating the shipment and discharge 
of seamen, and the duties of consuls. 3 

Be it enacted by the Senate and House of Representa¬ 
tives of the United States of America in Congress as- 
assembled , As follows: 

First. The duplicate list of the crew of any vessel 
bound on a foreign voyage, made out pursuant to the 
act of February twenty-eighth, eighteen hundred and 
three, shall be a fair copy in one uniform handwriting, 
without erasure or interlineation. 

Second. It shall be the duty of the owners of every 
such vessel to obtain from the collector of the customs 

1 Compare sections 12 and 21 of act of March 1, 1855, Session Acts, 623, 625. 

9 iv Statutes at Large, 773. 3 v Statutes at Large, 394. 




166 


of the district from which the clearance is made, a true 
and certified copy of the shipping articles, containing 
the names of the crew, which shall be written in a 
uniform hand, without erasures or interlineations. 

Third. These documents which shall be deemed to 
contain all the conditions of contract with the crew as 
to their service, pay, voyage, and all other things, shall 
be produced by the master, and laid before any consul, 
or other commercial agent of the United States, when¬ 
ever he may deem their contents necessary to enable 
him to discharge the duties imposed upon him by law 
toward any mariner applying to him for his aid or 
assistance. 

Fourth. All interlineations, erasures, or writing in a 
hand different from that in which such duplicates were 
originally made, shall be deemed fraudulent alterations, 
working no change in such papers, unless satisfactorily 
explained in a manner consistent with innocent pur¬ 
poses and the provisions of law which guard the rights 
of mariners. 

Fifth. Any consul of the United States, and in case 
there is none resident at a foreign port, or he is unable 
to discharge his duties, then any commercial agent of 
the United States authorized to perform such duties, 
may, upon the application of both the master and any 
mariner of the vessel under his command, discharge 
such mariner, if he thinks it expedient, without requir¬ 
ing the payment of three months’ wages, under the 
provisions of the act of the twenty-eighth of February, 
eighteen hundred and three, or any other sum of 
money. 

Sixth. Any consul, or other commercial agent, may 
also, on such joint application, discharge any mariner 


167 


on such terms as will, in his judgment, save the United 
States from the liability to support such mariner, if the 
master gives his voluntary assent to such terms, and 
conforms thereto. 

Seventh. When a mariner is so discharged, the 
officer discharging him shall make an official entry 
thereof upon the list of the crew and the shipping 
articles. 

Eighth. Whenever any master shall ship a mariner 
in a foreign port, he shall forthwith take the list of his 
crew and the duplicate of the shipping articles to the 
consul, or person who discharges the duties of the office 
at that port, who shall make the proper entries thereon, 
setting forth the contract, and describing the person of 
the mariner; and thereupon the bond originally given 
for the return of the men shall embrace each person so 
shipped. 

Ninth. When any mariner shall complain that the 
voyage is continued contrary to his agreement, or that 
he has fulfilled his contract, the consul, or other com¬ 
mercial agent performing like duties, may examine 
into the same by an inspection of the articles of agree¬ 
ment ; and if on the face of them he finds the complaint 
to be well founded, he shall discharge the mariner, if 
he desires it, and require of the master an advance, 
beyond the lawful claims of such mariner, of three 
months’ wages, as provided in the act of February 
twenty-eighth, eighteen hundred and three; and in 
case the lawful claims of such mariner are not paid 
upon his discharge, the arrears shall from that time 
bear an interest of twenty per centum: Provided , how¬ 
ever, If the consul or other commercial agent shall be 
satisfied the contract has expired, or the voyage been 


168 


protracted by circumstances beyond the control of the 
master, and without any design on his part to violate 
the articles of shipment, then he may, if he deems it 
just, discharge the mariner without exacting the three 
months’ additional pay. 

Tenth. All shipments of seamen, made contrary to 
the provisions of this and other acts of Congress, shall 
be void; and any seamen so shipped may leave the 
service at any time, and demand the highest rate of 
wages paid to any seamen shipped for the voyage, or 
the sum agreed to be given him at his shipment. 

Eleventh. It shall be the duty of consuls and com¬ 
mercial agents to reclaim deserters and discountenance 
insubordination by every means within their power; 
and where the local authorities can be usefully em¬ 
ployed for that purpose, to lend their aid and use their 
exertions to that end in the most effectual manner. 

Twefth. If the first officer, or any officer, and a 
majority of the crew of any vessel shall make com¬ 
plaint in writing that she is in an unsuitable condition 
to go to sea, because she is leaky, or insufficiently 
supplied with sails, rigging, anchors, or any other 
equipment, or that the crew is insufficient to man her, 
or that her provisions, stores, and supplies are not, or 
have not been, during the voyage, sufficient and whole¬ 
some, thereupon, in any of these or like cases, the con¬ 
sul or commercial agent who may discharge any duties 
of a consul shall appoint two disinterested, competent 
practical men, acquainted with maritime affairs, to ex¬ 
amine into the causes of complaint, who shall in their 
report state what defects and deficiencies, if any, they 
find to be well founded, as well as what, in their judg¬ 
ment, ought to be done to put the vessel in order for 
the continuance of her voyage. 


169 


Thirteenth. The inspectors so appointed shall have 
full power to examine the vessel and whatever is 
aboard of her, so far as is pertinent to their inquiry, 
and also to hear and receive any other proofs which 
the ends of justice may require, and if, upon a view of 
the whole proceedings, the consul or other commercial 
agent shall be satisfied therewith, he may approve the 
whole or any part of the report, and shall certify such 
approval, and if he dissents, shall also certify his reasons 
for so dissenting. 

Fourteenth. The inspectors in their report shall also 
state whether, in their opinion, the vessel was sent to 
sea unsuitably provided in any important or essential 
particular, by neglect or design, or through mistake or 
accident, and in case it was by neglect or design, and 
the consul or other commercial agent approves of such 
finding, he shall discharge such of the crew as require 
it, each of whom shall be entitled to three months’ pay 
in addition to his wages to the time of discharge; but, 
if in the opinion of the inspectors the defects or de, 
ficiencies found to exist have been the result of mistake 
or accident, and could not, in the exercise of ordinary 
care, have been known and provided against before 
the sailing of the vessel, and the master shall, in a rea¬ 
sonable time, remove or remedy the causes of complaint, 
then the crew shall remain and discharge their duty; 
otherwise they shall, upon their request, be discharged, 
and receive each one month’s wages in addition to the 
pay up to the time of discharge. 

Fifteenth. The master shall pay all such reasonable 
charges in the premises as shall be officially certified 
to him under the hand of the consul or other commer¬ 
cial agent, but in case the inspectors report that the 
22 * 


170 


complaint is without any good and sufficient cause, the 
master may retain from the wages of the complainants, 
in proportion to the pay of each, the amount of such 
charges, with such reasonable damages for detention 
on that account as the consul or other commercial 
agent directing the inquiry may officially certify. 

Sixteenth. The crew of any vessel shall have the 
fullest liberty to lay their complaints before the consul 
or commercial agent in any foreign port, and shall in 
no respect be restrained or hindered therein by the 
master or any officer, unless some sufficient and valid 
objection exist against their landing; in which case, if 
any mariner desire to see the consul or commercial 
agent, it shall be the duty of the master to acquaint 
him with it forthwith; stating the reason why the mar¬ 
iner is not permitted to land, and that he is desired to 
come on board; whereupon it shall be the duty of such 
consul or commercial agent to repair on board and 
inquire into the causes of complaint, and to proceed 
thereon as this act directs. 

Seventeenth. In all cases where deserters are appre¬ 
hended, the consul or commercial agent shall inquire 
into the facts; and, if satisfied that the desertion was 
caused by unusual or cruel treatment, the mariner shall 
be discharged, and receive, in addition to his wages to 
the time of his discharge, three months 1 pay; and the 
officer discharging him shall enter upon the crew list 
and shipping articles the cause of discharge, and the 
particulars in which the cruelty or unusual treatment 
consisted, and subscribe his name thereto officially. 

Eighteenth. If any consul or commercial agent shall 
neglect or omit to perform, seasonably, the duties hereby 
imposed upon him, or shall be guilty of any malversa- 


171 


tion or abuse of power, lie shall be liable to any injured 
person for all damage occasioned thereby; and for all 
malversation and corrupt conduct in office, he shall be 
liable to indictment, and, on conviction by any court 
of competent jurisdiction, shall be fined not less than 
one nor more than ten thousand dollars, and be im¬ 
prisoned not less than one nor more than five years. 

Nineteenth. If any master of a vessel shall proceed 
on a foreign voyage without the documents herein 
required, or refuse to produce them when required, or 
to perform the duties imposed by this act, or shall 
violate the provisions thereof, he shall be liable to each 
and every individual injured thereby in damages, and 
shall, in addition thereto, be liable to pay a fine of one 
hundred dollars for each and every offence, to be re¬ 
covered by any person suing therefore in any court of 
the United States in the district where such delinquent 
may reside or be found. 

Twentieth. It shall be the duty of the boarding 
officer to report all violations of this act to the collec¬ 
tor of the port where any vessel may arrive, and the 
collector shall report the same to the Secretary of the 
Treasury and to the attorney of the United States in 
his district. 

Twenty-first. This act shall be in force from and 
after the first day of October next; and shall not apply 
to vessels which shall have sailed from ports of the 
United States before that time. 

Approved, July 20, 1840. 


172 


AN ACT to regulate the carriage of passengers in steamships and other 
vessels. 1 

Be it enacted by the'Senate and House of Represent¬ 
atives of the United States of America in Congress 
assembled , That no master of any vessel owned in 
whole or in part by a citizen of the United States, or 
by a citizen of any foreign country, shall take on board 
such vessel, at any foreign port or place, other than 
foreign contiguous territory of the United States, a 
greater number of passengers than in proportion of 
one to every two tons of such vessel, not including 
children under the age of one year in the computation, 
and computing two children over one and under eight 
years of age as one passenger. That the spaces appro¬ 
priated for the use of such passengers, and which shall 
not be occupied by stores or other goods not the per¬ 
sonal baggage of such passengers, shall be in the fol¬ 
lowing proportions, viz: on the main and poop decks 
or platforms, and in the deck houses, if there be any, 
one passenger for each sixteen clear superficial feet of 
deck, if the height or distance between the decks or 
platform shall not be less than six feet; and on the 
lower deck, (not being an orlop deck,) if any, one pas¬ 
senger for eighteen such clear superficial feet, if the 
height or distance between the decks or platforms shall 
not be less than six feet, but so as that no passenger 
shall be carried on any other deck or platform, nor 
upon any deck where the height or distance between 
decks is less than six feet, with intent to bring such 
passenger to the United States, and shall leave such port 
or place and bring the same, or any number thereof, 
within the jurisdiction of the United States; or if any 


Session Acts 1854-5, p. 715. 


173 


such master of any vessel shall take on board his 
vessel, at any port or place within the jurisdiction of 
the United States, any greater number of passen¬ 
gers than in the proportion aforesaid to the space 
aforesaid, or to the tonnage aforesaid, with intent 
to carry the same to any foreign port or place other 
than foreign contiguous territory as aforesaid, every 
such master shall be deemed guilty of a misdemeanor, 
and, upon conviction thereof before any circuit or 
district court of the United States, shall, for each 
passenger taken on board beyond the limit aforesaid, 
or the space aforesaid, be fined in the sum of fifty dol¬ 
lars, and jnay also be imprisoned at the discretion of 
the judge before whom the penalty shall be recovered, 
not exceeding six months; but should it be necessary 
for the safety or convenience of the vessel, that any 
portion of her cargo, or any other article or articles, 
should be placed on, or stored in, any of the decks, 
cabins, or other places appropriated to the use of pas¬ 
sengers, the same may be placed in lockers or enclo^ 
sures prepared for the purpose, on an exterior surface 
impervious to the wave, capable of being cleansed in 
like manner as the decks or platforms of the vessel 
In no case, however, shall the places thus provided be 
deemed to be a part of the space allowable for the use 
of passengers, but the same shall be deducted there¬ 
from, and in all cases where prepared or used, the 
upper surface of said lockers or enclosed spaces shall 
be deemed and taken to be the deck or platform from 
which measurement shall be made for all the purposes 
of this act. It is also provided that one hospital, in the 
spaces appropriated to passengers, and separate there¬ 
from by an appropriate partition, and furnished as its 


174 


purposes require, may be prepared, and, when used, 
may be included in the space allowable for passengers, 
but the same shall not occupy more than one hundred 
superficial feet of deck or platform: Provided , That 
on board two-deck ships, where the height between 
the decks is seven and one-half feet or more, fourteen 
clear superficial feet of deck shall be the proportion 
required for each passenger. 

Sec. 2. And be it further enacted , That no such vessel 
shall have more than two tiers of bertha, nnd the inter¬ 
vals between the lowest part thereof and the deck or 
platform beneath, shall not be less than nine inches, and 
the berths shall be well constructed parallel with the 
sides of the vessel, and separated from ea£h other by 
partitions, as berths ordinarily are separated, and shall 
be at least six feet in length and at least two feet in 
width, and each berth shall be occupied by no more 
than one passenger; but double berths of twice the 
above width may be constructed, each berth to be 
occupied by no more, and by no other, than two 
women, or by one woman and two children under the 
age of eight years, or by husband and wife, or by a 
man and two of his own children under the age of 
eight years, or by two men, members of the same 
family; and if there shall be any violation of this sec¬ 
tion in any of its provisions, then the master of the ves¬ 
sel and the owners thereof shall severally forfeit and 
pay the sum of five dollars for each passenger on board 
of said vessel on such voyage, to be recovered by the 
United States in any port where such vessel may arrive 
or depart. 

Sec. 3. And be it further enacted , That all vessels, 
whether of the United States or any foreign country, 


175 


having sufficient capacity or space, according to law ? 
for fifty or more passengers, (other than cabin passen¬ 
gers,) shall, when employed in transporting such pas¬ 
sengers between the United States and Europe, have, 
on the upper deck, for the use of such passengers, a 
house over the passage way leading to the apartments 
allotted to such passengers below deck, firmly secured 
to the deck or combings of the hatch, with two doors, 
the sills of which shall be at least one foot above the 
deck, so constructed that one door or window in such 
house may at all times be left open for ventilation; and 
all vessels so employed, and having the capacity to 
carry one hundred and fifty such passengers or more, 
shall have two such houses; and the stairs or ladder 
leading down to the aforesaid apartment shall be fur¬ 
nished with a hand-rail of wood or strong rope; but 
booby hatches may be substituted for such houses. 

Sec. 4. And be it further enacted , That every such 
vessel so employed, and having the legal capacity for 
more than one hundred such passengers, shall have at 
least two ventilators to purify the apartment or apart¬ 
ments occupied by such passengers; one of which shall 
be inserted in the after part of the apartment or apart¬ 
ments, and the other shall be placed in the forward 
portion of the apartment or apartments, and one of them 
shall have an. exhausting cap to carry off the foul air, 
and the other a receiving cap to carry down the fresh 
air; which said ventilators shall have a capacity pro¬ 
portioned to the size of the apartment or apartments to 
be purified, namely: if the apartment or apartments 
will lawfully authorize the reception of two hundred 
such passengers, the capacity of such ventilators shall 
each be equal to a tube of twelve inches diameter in 


176 


the clear, and in proportion for larger or smaller apart¬ 
ments; and all said ventilators shall rise at least four 
feet six inches above the upper deck of 'any such ves¬ 
sel, and be of the most approved form and construction; 
but if it shall appear, from the report to be made and 
approved, as hereinafter provided, that such vessel is 
equally well ventilated by any other means, such other 
means of ventilation shall be deemed and held to be a 
compliance with the provisions of this section. 

Sec. 5. And be it further enacted , That every vessel 
carrying more than fifty such passengers, shall have for 
their use on deck, housed and conveniently arranged, 
at least one camboose or cooking range, the dimensions 
of which shall be equal to four feet long and one foot 
six inches wide, for every two hundred passengers; 
and provision shall be made in the manner aforesaid, ♦ 
in this ratio, for a greater or less number of passengers; 
but nothing herein contained shall take away the right 
to make such arrangements for cooking between decks, 
if that shall be deemed desirable. 

Sec. 6. And be it further enacted , That all vessels 
employed as aforesaid shall have on board, for the use 
of such passengers, at the time of leaving the last port 
whence such vessel shall sail, well secured under deck, 
for each passenger, at least twenty pounds of good 
navy bread, fifteen pounds of rice, fifteen pounds of 
oatmeal, ten pounds of wheat flour, fifteen pounds of 
peas and beans, twenty pounds of potatoes, one pint 
of vinegar, sixty gallons of fresh water, ten pounds of 
salted pork, and ten pounds of salt beef, free of bones, 
all to be of good quality; but at places where either 
rice, oatmeal, wheat flour, or peas and beans cannot be 
procured, of good quality and on reasonable terms, the 


177 


quantity of either or any of the other last named arti¬ 
cles may be increased and substituted therefor; and in 
case potatoes cannot be procured on reasonable terms, 
one pound of either of said articles may be substituted 
in lieu of five pounds of potatoes; and the captains of 
such vessels shall deliver to each passenger at least one- 
tenth part of the aforesaid provisions weekly, com¬ 
mencing on the day of sailing, and at least three quarts 
of water daily; and if the passengers on board of any 
such vessel in which the provisions and water herein 
required shall not have been provided as aforesaid, 
shall at any time be put on short allowance during any 
voyage, the master or owner of any such vessel shall 
pay to each and every passenger who shall have been 
put on short allowance the sum of three dollars for 
each and every day they may have been put on short 
allowance, to be recovered in the circuit or district 
court of the United States; and it shall be the duty of 
the captains or master of every such ship or vessel to 
cause the food and provisions of all the passengers to 
be well and properly cooked daily, and to be served 
out and distributed to them at regular and stated hours 
by messes, or in such other manner as shall be deemed 
best and most conducive to the health and comfort of 
such passengers, of which hours and manner of distri¬ 
bution due and sufficient notice shall be given. If the 
captain or master of any such ship or vessel shall wil¬ 
fully fail to furnish and distribute such provisions, 
cooked as aforesaid, he shall be deemed guilty of a 
misdemeanor, and upon conviction thereof before any 
circuit or district court of the United States, shall be 
fined not more than one thousand dollars and shall be 
imprisoned for a term not exceeding one year: Pro- 
23 * 


178 


vided ., That the enforcement of this penalty shall not 
effect the civil responsibility of the captain or master 
and owners to such passengers as may have suffered 
from said default. 

Sec. 7. And be it further enacted , That the captain 
of any such vessel so employed is hereby authorized 
to maintain good discipline and such habits of cleanli¬ 
ness among such passengers as will tend to the preser¬ 
vation and promotion of health; and to that end he 
shall cause such regulations as he may adopt for this 
purpose, to be posted up, before sailing, on board such 
vessel, in a place accessible to such passengers, and 
shall keep the same so posted up during the voyage; 
and it is hereby made the duty of said captain to cause 
the apartments occupied by such passengers to be kept 
at all times in a clean, healthy state, and the owners 
of every such vessel so employed are required to con¬ 
struct the decks, and all parts of said apartment, so 
that it can be thoroughly cleansed; and they shall also 
provide a safe, convenient privy or water closet for the 
exclusive use of every one hundred such passengers. 
And when the weather is such that said passengers 
cannot be mustered on deck with their bedding, it 
shall be the duty of the captain of every such vessel 
to cause the deck occupied by such passengers to be 
cleansed with chloride of lime, or some other equally 
efficient disinfecting agent, and also at such other times 
as said captain may deem necessary. 

Sec. 8. And be it further enacted , That the master 
and owner or owners of any such vessel so employed, 
which shall not be provided with the house or houses 
over the passage-ways, as prescribed in the third sec¬ 
tion of this chapter, or with ventilators, as prescribed 


in the fourth section of this chapter, or with the cam- 
booses or cooking ranges, with the houses over them, 
as prescribed in the fifth section of this chapter, shall 
severally forfeit and pay to the United States the sum 
of two hundred dollars for each and every violation of, 
or neglect to conform to, the provisions of each of said 
sections; and fifty dollars for each and every neglect 
or violation of any of the provisions of the seventh 
section of this chapter, to be recovered by suit in any 
circuit or district court of the United States, within 
the jurisdiction of which the said vessel may arrive, or 
from which she may be about to depart, or at any place 
within the jurisdiction of such courts, wherever the 
owner or owners or captain of such vessel may be 
found. 

Sec. 9. And be it further enacted , That the collector 
of the customs at any port of the United States at 
which any vessel so employed shall arrive, or from 
which any such vessel shall be about to depart, shall 
appoint and direct one or more of the inspectors of the 
customs for such port to examine such vessel, and re¬ 
port, in writing, to such collector, whether the require¬ 
ments of law have been complied with in respect to 
such vessel; and if such report shall state such com¬ 
pliance, and shall be approved by such collector, it 
shall be deemed and held as prima facie evidence 
thereof. 

Sec. 10 And be it further enacted, That the pro¬ 
visions, requisitions, penalties, and liens of this act, 
relating to the space in vessels appropriated to the use 
of passengers, are hereby extended and made applica¬ 
ble to all spaces appropriated to the use of steerage 
passengers in vessels propelled in whole or in part by 


180 


steam, and navigating from, to, and between the ports, 
and in manner as in this act named, and to such vessels 
and to the masters thereof; and so much of the act 
entitled “An act to amend an act entitled ‘An act to 
provide for the better security of the lives of passen¬ 
gers on board of vessels propelled in whole or in part 
by steam, and for other purposes,’ ” approved August 
thirtieth, eighteen hundred and fifty-two, as conflicts 
with this act, is hereby repealed ; and the space appro¬ 
priated to the use of steerage passengers in vessels so 
as above propelled and navigated, is hereby subject to 
the supervision and inspection of the collector of the 
customs at any port of the United States at which any 
such vessel shall arrive, or from which she shall be about 
to depart; and the same shall be examined and reported 
in the same manner, and by the same officers, by the 
next preceding section directed to examine and report. 

Sec. 11. And be it further enacted , That the vessels 
bound from any port in the United States to any port 
or place in the Pacific ocean, or on its tributaries, or 
from any such port or place to any port in the United 
States on the Atlantic or its tributaries, shall be subject 
to the foregoing provisions regulating the carriage of 
passengers in merchant vessels, except so much as re¬ 
lates to provisions and water; but the owners and 
masters of all such vessels shall in all cases furnish to 
each passenger the daily supply of water therein men¬ 
tioned; and they shall furnish a sufficient supply of good 
and wholesome food, properly cooked; and in case they 
shall fail so to do, or shall provide unwholesome or 
unsuitable provisions, they shall be subject to the pen¬ 
alty provided in the sixth section of this chapter, in 
case the passengers are put on short allowance of water 
or provisions. 


181 


Sac. 12. And be it farther enacted , That the captain 
or master of any ship or vessel arriving in the United 
States, or any of the Territories thereof, from any for¬ 
eign place whatever, at the same time that he delivers 
a manifest jof the cargo, and if there be no cargo, then 
at the time of making report or enfry of the ship or 
vessel, pursuant to law, shall also deliver and report to 
the collector of the district in which such ship or ves¬ 
sel shall arrive, a list or manifest of all the passengers 
taken on board of the said ship or vessel at any foreign 
port or place; in which list or manifest it shall be the 
duty of the said master to designate, particularly, the 
age, sex, and occupation of the said passengers, respec¬ 
tively, the part of the vessel occupied by each during 
the voyage, the country to which they severally belong, 
and that of which it is their intention to become inhab¬ 
itants; and shall further set forth whether any, and 
what number, have died on the voyage; which list or 
manifest shall be sworn to by the said master, in the 
same manner as directed by law in relation to the man¬ 
ifest of the cargo, and the refusal or neglect of the 
master aforesaid to comply with the provisions of this 
section, or any part thereof, shall incur the same penal¬ 
ties, disabilities, and forfeitures as are provided for a 
refusal or neglect to report and deliver a manifest of 
the cargo aforesaid. 

Sec. 13. And be it further enacted , That each and 
every collector of the customs, to whom such manifest 
or list of passengers as aforesaid shall be delivered, 
shall quarter-yearly return copies thereof to the Secre¬ 
tary of State of the United States, by whom statements 
of the same shall be laid before Congress at each and 
every session. 


182 


Sec. 14. And be it further enacted , That in ^ase 
there shall have occurred on board any ship or vessel 
arriving at any port or place within the United States 
or its Territories, any death or deaths among the pas¬ 
sengers, (other than cabin passengers,) the.master or 
captain or owner or consignee of such ship or vessel 
shall, within twentyTour hours after the time within 
which the report and list or manifest of passengers 
mentioned in section twelve of this act is required to 
be delivered to the collector of the customs, pay to the 
said collector the sum of ten dollars for each and every 
passenger above the age of eight years who shall have 
died on the voyage by natural disease; and the said 
collector shall pay the money thus received at such 
times and in such manner as the Secretary of the Treas¬ 
ury, by general rules, shall direct, to any board or com¬ 
mission appionted by and acting under the authority of 
the State within which the port where such ship or ves¬ 
sel arrived is situated, for the care and protection of 
sick, indigent, or destitute emigrants, to be applied to 
the objects of their appointment; and if there be more 
than one board or commission who shall claim such 
payment, the Secretary of the Treasury, for the time 
being, shall determine which is entitled to receive the 
same, and his decision in the premises shall be final and 
without appeal: Provided , That the payment shall in no 
case be awarded or made to any board or commission 
or association formed for the protection or advancement 
of any particular class of emigrants, or emigrants of any 
particular nation or creed; and if the master, captain, 
or owner, or consignee of any ship or vessel refuse or 
neglect to pay to the collector the sum and sums of 
money required, and wfithin the time prescribed by this 


183 


section, he or they shall severally forfeit and pay the sum 
of fifty dollars in addition to such sum of ten dollars for 
each and every passenger upon whose death the same 
has become payable, to be\ recovered by the United 
States in any circuit or district court of the United 
States where such vessel may arrive, or such master^ 
captain, owner, or consignee may reside; and when 
recovered, the said money shall be disposed of in the 
same manner as is directed with respect to the sum and 
sums required to be paid to the collector of customs. 

Sec. 15. And be it further enacted , That the amount 
of the several penalties imposed by the foregoing pro¬ 
visions regulating the carriage of passengers in mer¬ 
chant vessels, shall be liens on the vessel or vessels 
violating those provisions, and such vessel or vessels 
shall be libelled therefor in any circuit or district court 
of the United States where such vessel or vessels shall 
arrive. 

Sec. 16. And be it further enacted, That all and every 
vessel or vessels which shall or may be employed by 
the American Colonization Society, or the Colonization 
Society of any State, to transport, and which shall 
actually transport, from any port or ports of the United 
States to any colony or colonies on the west coast of 
Africa, colored emigrants to reside there, shall be, and 
the same are hereby, subjected to the operation of the 
foregoing provisions regulating the carriage of pas¬ 
sengers in merchant vessels. 

Sec. 17. And be it further enacted , That the collec¬ 
tor of the customs shall examine each emigrant ship or 
vessel on its arrival at his port, and ascertain and re¬ 
port to the Secretary of the Treasury, the time of 
sailing, the length of the voyage, the ventilation, the 


184 


number of passengers, their space on board, their food, 
the native country of the emigrants, the number of 
deaths, the age and sex of those who died during the 
voyage; together with his opinion of the cause of the 
mortality, if any, on board, and if none, what pre¬ 
cautionary measures, arrangements, or habits, are sup¬ 
posed to have had any, and what, agency in causing 
the exemption. 

Sec. 18. And be it further enacted, That this act 
shall take effect, with respect to vessels sailing from 
ports in the United States on the eastern side of the 
continent, within thirty days from the time of its 
approval; and with respect to vessels sailing from 
ports in the United States on the western side of the 
continent, and from ports in Europe, within sixty days 
from the time of its approval; and with respect to 
vessels sailing from ports in other parts of the world, 
within six months from the time of its approval. 

And it is hereby made the duty of the Secretary of 
State to give notice, in the ports of Europe and else¬ 
where, of this act, in such manner as he shall deem 
proper. 

Sec. 19. And be it further enacted, That from and 
after the time that this act shall take effect with respect 
to any vessels, then in respect to such vessels the act 
of second March, eighteen hundred and nineteen, en¬ 
titled u An act regulating passenger ships and vessels,” 
the act of twenty-second of February, eighteen hundred 
and forty-seven, entitled u An act to regulate the car¬ 
riage of passengers in merchant vessels,” the act of 
second March, eighteen hundred and forty-seven, en¬ 
titled u An act to amend an act entitled ‘An act to 
regulate the carriage of passengers in merchant ves- 


185 


sels,’ and to determine the time when said act shall 
take effect,” the act of thirty-first January, eighteen 
hundred and forty-eight, entitled “An act exempting 
vessels employed by the American Colonization Society 
in transporting colored emigrants from the United 
States to the coast of Africa from the provisions of the 
acts of the twenty-second February and second of 
March, eighteen hundred and forty-seven, regulating 
the carriage of passengers in merchant vessels,” the 
act of seventeenth May, eighteen hundred and forty- 
eight entitled “An act to provide for the ventilation 
of passenger vessels, and for other purposes,” and the 
act of third March, eighteen hundred and forty-nine, 
entitled “An act to extend the provisions of all laws 
now in force relating to the carriage of passengers in 
merchant vessels, and the regulation thereof,” are 
hereby repealed. But nothing in this act contained 
shall in any wise obstruct or prevent the prosecution, 
recovery, distribution, or remission of any fines, pen¬ 
alties, or forfeitures which may have been incurred in 
respect to any vessels prior to the day this act goes 
into effect, in respect to such vessels, under the laws 
hereby repealed, for which purpose the said laws shall 
continue in force. 

But the Secretary of the Treasury may, in his dis¬ 
cretion, and upon such conditions as he shall think 
proper, discontinue any such prosecutions, or remit 
or modify such penalties. 

Approved March 3, 1855. 


24 * 


F. 


INDEX TO THE PRINCIPAL ACTS OF CONGRESS IN WHICH THERE 
ARE REFERENCES TO THE DUTIES OF CONSULS. 


TITLE, OR SUBJECT. 

DATE. 

WHERE FOUND. 

An act for the government and regulation of 
seamen in the merchant service. 

July 20, 1790 

Statutes i, 131 

An act concerning consuls and vice consuls .... 

April 14, 1792 

Statutes i, 254 

Au act for the relief and protection of Ameri¬ 
can seamen. 

May 28, 1796 

Statutes, i, 477 

An act for the relief of sick and disabled sea¬ 
men. 

July 16, 1798 

Statutes i, 605 

An act to regulate the collection of duties on 
imports and tonnage. 

March 2, 1799 

Statutes i, 627 

An act to amend an act intituled “ An act for 
the relief of disabled seamen,” and for other 
purposes. 

May 3, 1802 

Statutes ii, 192 

An act supplementary to the “ Act concerning 
consuls and vice consuls, and for the further 
protection of American seamen.” 

Feb. 28, 1803 

Statutes ii, 203 

An act for the regulation of seamen on board 
the public and private vessels of the United 
States. 

March 3, 1813 

Statutes ii, 809 

An act authorizing the deposit of the papers 
of foreign vessels with the consul of their 
respective nations. 

March 3, 1817 

Statutes iii, 362 

An act supplementary to “ An act to regulate 
the collection of duties on imports and ton¬ 
nage,” passed the second day of March, one 
thousand seven hundred and ninety-nine. 

April 20, 1818 

Statutes iii, 433 

An act supplementary to, and to amend an act, 
entitled An act to regulate the collection 
of duties on imports and tonnage,” passed 
the second day of March, one thousand seven 
hundred and ninety-nine, and for other pur¬ 
poses. 

March 1, 1823 

Statutes iii, 729 










INDEX TO ACTS—Continued. 


TITLE, OR SUBJECT. 

DATE. 

WHERE FOUND. 

An act to prescribe the punishments of con¬ 
suls, commercial agents, and others, in cer¬ 
tain cases. 

March 3, 1835 

Statutes iv, 773 

An act in addition to the several acts regulating 
the shipment and discharge of seamen, and 
the duties of consuls. 

July 20, 1840 

Statutes v, 394 

An act to provide for the transportation of the 
mail between the United States and foreign 
countries, and for other purposes. 

March 3, 1845 

Statutes v, 748 

An act more effectually to provide for the en¬ 
forcement of certain provisions in the trea¬ 
ties of the United States. 

August 8, 1846 

Statutes ix, 78 

An act to carry into effect certain provisions 
in the treaties between the United States and 
China, and the Ottoman Porte, giving certain 
judicial powers to ministers and consuls of 
the United States in those countries. 

Aug. 11, 1848 

Statutes ix, 276 

An act to repeal so much of the act approved 
eleventh day of August, eighteen hundred 
and forty-eight, as extends the provisions 
thereof to Macao. 

Sept. 20, 1850 

Statutes ix, 468 

An act to remodel the diplomatic and consular 
systems of the United States; also section 
third of the act approved the third day of 
March, eighteen hundred and fifty-five, amend¬ 
atory thereof. 

March 1, 1856 

Sess. Acts, 619 










Gr. 


LIST OF MINISTERS, CONSULS, AND OTHER DIPLOMATIC AND COMMERCIAL 
AGENTS OF THE UNITED STATES IN FOREIGN COUNTRIES, THEIR COMPEN 
SATION, THE PLACES OF THEIR RESIDENCE, AND THE STATES WHERE 
BORN AND WHENCE APPOINTED. 

Consuls at places marked thus (a) are 11 at liberty to transact business.” 


Names and offices. 


BRITISH DOMINIONS. 


ENGLAND. 


ister Plenipotentiary. 
James Buchanan. 


Secretary of Legation. 
John Appleton.. 


Robt. B. Campbell-Consul 

Nathaniel Hawthorne-do.. 

Albert Davy.do.. 

.do.. 

Francis B. Ogden ... 

Augustus W. Scharit 

Thomas W. Fox- 

Joseph R. Croskey .. 


...do.. 

...do.. 

...do.. 

...do.. 


SCOTLAND. 

James McDowell* .. 


.do.. 


Thomas Steere. 

Philip T. Heartt... 


. Consul 

...do.. 
... do.. 


James Arrott. 

John Higgins*. 


Hugh Keenan*. 

Valentine Holmes ... 


. Consul 
...do.. 
...do.. 
...do.. 
... do.. 


Where em¬ 
ployed. 

Where 

born. 

Whence 

appointed. 

London . 

Penn .... 

Penn .... 


Maine ... 

Maine ... 

- do . 

S. C . 

Texas . . . 

Liverpool .... 

Mass .... 

Mass .... 

Leeds. 

Penn .... 

Penn .... 

aManchester .. 



aBristol. 

N. J. 

N. J. 

aFal mouth .... 

N. Y . 

Missouri . 

aPlymouth .... 

England . 


aSouthampton 

Penn .... 

Penn .... 

and Cowes. 
New Castle _ 



aLeith, (port of 

Scotland . 

Ohio . 

Edinburg.) 



Dundee _ 

N. Y . 

R. Island. 
NY . 

Glasgow . 

..do . 

aDublin . 

Penn .... 

Penn .... 

Belfast _ m .. 

Ireland .. 

N. Y . 

aLondonderry . 
aCork . 



Ireland .. 

Penn .... 

aGalway . 




Compen¬ 

sation. 


$17,500 


2.500 

7.500 

7.500 

1.500 
Fees. 
1,000 
Fees. 
Fees. 
1,000 

1,500 


1,000 

2,000 
4,000 


1,000 
2,000 
Fees. 
1,000 
1,000 


Naturalized. 












































189 


Names and offices. 


CHINA. 

James Keenan.Consul 

EAST INDIES. 

Charles Iluffnagle, Consul Gen¬ 
eral of British India. 

Edward Ely..Consul 

John Black.Com. agent 

Charles W. Bradley_Consul 

AUSTRALIA. 

James H. Williams_Consul 

James M. Tarleton.do.. 

TAN DIEMAN’s LAND. 

Elisha Hathaway.Consul 

IN AND NEAR EUROPE OR 
AFRICA. 


Horatio J. Sprague_Consul 

William Winthrop.._do.. 

Daniel M. Huckins.do.. 


.do.. 

Geo. W. Kimball..Com. agen 

NORTH AMERICA. 


Where em¬ 
ployed. 


Hong Kong... 


Calcutta . 


a Bombay. 

aCeylon. 

aSingapore .... 


aSydney,N.S.W 

Melbourne... 


aHobart Town. 


aGibraltar. 

alsl’d of Malta. 
aCape Town, C. 

of Good Hope. 
aPort Louis,Isle 
of France, 
t alsl’dSt.Helena 


I. D. Andrews, Consul General 
British North American 


Provinces. 

Canfield Dorwin.Consul 

Robt. W. Fraser *.do.. 

Wm. S. H. Newman*.do.. 

Benjamin H. Norton.do.. 

.do.. 


WEST INDIES. 


Robert M. Harrison_Consul 

John F. Bacon.do.. 

.do.. 

Noble Towner.do.. 


Quebec 


a Montreal. 

Halifax, N. S. 
aSt. John’s,N.F. 
aPictou, N. S-. 
aSt. John’s,N.B. 


Kingston, Ja¬ 
maica. 

Nassau, N. P. 
aTurk’s Island. 
aBarbadoes.... 


Where 

born. 

Whence 

appointed. 

Compen 

sation. 

Penn .... 

Penn .... 

$3,000 

Penn .... 

Penn .... 

3,500 

.. do. 

..do. 

1,000 

Scotland . 


1,000 

Conn .... 

Conn .... 

1,000 

Maine ... 

Maine . .. 

1,000 

N. H. 

Alabama. 

4,000 

Mass .... 

Mass .... 

1,000 

Mass .... 

Mass .... 

750 

..do. 

..do. 

1,000 

..do. 

..do. 

1,000 



1,000 

Maine ... 

Georgia.. 

1,000 

I’dofCam- 

Maine .. 

4,000 

pobello. i 



Vermont. 

Vermont. 

Fees. 

G. Britain. 

Mass .... 

2,000 

St. John’s. 

N. Y. 

Fees. 

Mass .... 

Mass .... 

1,000 



1,000 

Virginia.. 

Virginia.. 

2,000 

Mass .... 

N. Y. 

2,000 



1,000 

Vermont. 

Conn .... 

1,000 


Naturalized. 































190 


Names and offices. 

Where em¬ 
ployed. 

Where 

born. 

Whence 

appointed. 

E. B. Marache* . Consul 

alslaud of Trin¬ 

Trinidad . 

Penn .... 


idad. 



F. B. Wells.do.. 

^Bermuda. 

N. H . 

N. Y . 

R. S. Higinbothom* . .Com. ag’t 

aAntigua . 

Antigua.. 

Maryland. 

Win. T. Thurston . do.. 

aSt.Christopher 

N. Y. 

R. Island. 

SOUTH AMERICA. 




A. V. Colvin___Consul 

aDemerara, Bri¬ 


Florida .. 


tish Guiana. 



W. H. Smiley.Com. agent 

aPort Stanley, 

R. Island. 

R. Island. 


Falkland Isles. 



RUSSIA. 




Envoy Extraordinary and Min- 




ister Plenipotentiary. 




Thomas H. Seymour . 

St. Petersburg. 

Conn .... 

Conn .... 

Secretary of Legation. 




R. Augustus Erving . 

St. Petersburg. 

Conn .... 

Conn .... 

William L. Winans - Consul 

....do . 

N. J . 

Maryland. 

Alexander Schwartz . do. 

aRiga . 

Russia 


Edmund Brandt . do.. 

o 

^Archangel .... 



John Ralli . do.. 

^Odessa. _ 



Reynold Frenckell . do .. 

aHelsingfors _ 

Finland 


. do.. 

aGalatza, Mol¬ 




davia. 



FRENCH DOMINIONS. 




Envoy Extraordinary and Min¬ 




ister Plenipotentiary. 




John Y. Mason . 

Paris . 

Virginia.. 

Virginia.. 

Secretary of Legation. 




Don Piatt .'. 

Paris . 

Ohio 

Ohio 

Duncan K. McRae . Consul 

..do . 

N. C. 

N.C . 

W. H.Vesey.do.. 

Havre. 

Penn .... 

N. York.. 

John L. Hodge.do.. 

Marseilles.... 

..do. 

Penn .... 

William Day . ...do.. 

Lyons _... 


..do . 

J. B. C. Antoine . do.. < 

aSedan . 

France 


Hypolite Roques . do.. 

Nantes_ 

T jOiiisiana 

Louisiana 

Edward B. Buchanan . do.. 

La Rochelle.. 

JUv UlolClliCli 

Maryland. 

aju uioiautt. 

Maryland. 

Levi K. Bowen.do.. 

Bordeaux .... 

Penn 

do 

John P. Sullivan . do.. < 

aBayonne . 

N. York.. 

California. 


* Of American partnts residing temporarily abroad. 


Compen¬ 

sation. 


$ 1 , 000 

1,000 

1,000 

1,000 


1,000 

1,000 


12,000 


2,000 

2.500 
Fees. 
Fees. 

1.500 
Fees. 
1,000 


15,000 


2,250 

5,000 
5,000 

2,500 
1,000 
Fees. 
1, 000 
1,000 
2,000 
FeeB. 


























































191 


Names and offices. 

Where em¬ 

Where 

Whence 

Compen¬ 


ployed. 

born. 

appointed. 

sation. 


Charles Audouy*.Consul aNapoleon Ven¬ 

dee. 


France .. 


Alabama. 


Fees. 


WEST INDIES. 

.Consul 

Alexander Campbell*_do.. 

AFRICA. 

John J. Mahony*.Consul 

AMERICA. 

Consul aCayenne, Fr’h 
Guiana. 

George Hughes-Com. agent aSt. Pierre, Mi¬ 

quelon. 


aGuadaloupe... 
^Martinique... 


a Algiers. 


Scotland . 


Ireland .. 


Mass. 


Mass. 


Mass. 


Fees. 

$750 


Fees. 


Fees. 

750 


SPANISH DOMINIONS. 

Envoy Extraordinary and Min¬ 
ister Plenipotentiary . 

Augustus C. Dodge. 

Secretary of Legation. 

Buckingham Smith. 


Alexander Burton.Consul 

.do.. 

Pablo Anguera*.do.. 

Spiridion Ladico.do.. 

John Morand.do.. 

Thomas Trenor.do.. 

Manuel Barcena..do.. 

William L. Giro.do.. 

Maximo de Aguirre.do.. 


CUBA. 

Wm. H. Robertson.Act’g Con. 


Edward Worrell.Consul 

Samuel McLean.do.. 

Stephen Cochran.do.. 


Madrid. 


Iowa. 


Madrid, 


Georgia.. 


Florida .. 


Cadiz. 

Malaga. 

aBarcelona.... 
aPort Mahon, 
Minorca. 

aDenia. 

a Valencia. 

a Vi go. 


Penn .... 
Vermont. 
Spain.... 
Minorca . 


Ireland .. 
Spain.... 


Penn. 

Ohio .... 


Minorca . 


Spain.... 
...do. 


^Alicante. 
aBilbao.. 


Spain 


Havana. 

Matanzas. 

Trinidad de 
Cuba. 

St. Jago de 
Cuba. 


U.S. 

Delaware. 
Virginia . 

Maine.:.. 


U.S. 

Delaware. 
Missouri. 

Penn .... 


12,000 


2,250 

1,500 

1,500 

750 

Fees. 

Fees. 

Fees. 

Fees. 

Fees. 

Fees. 


6,000 
3,000 
3,000 

2,000 


Naturalized. 





















































192 


Names and offices. 

Where em¬ 
ployed. 

Where 

born. 

Whence 

appointed. 

Compen¬ 

sation. 

PUERTO RICO. 





George Latimer.Consul 

James C. Gallaher.do.. 

St. Johns. 

Ponce_ 

Penn .... 
Virginia . 

Penn .... 
...do. 

$2, 000 
1,500 



OTHER SPANISH ISLANDS. 





W. P. Pierce.do.. 

Samuel J. Masters.do.. 

PORTUGUESE DOMINIONS. 

Teneriffe. 

Manila_ 

N. Y. 

U. S. 

N. Y. 

..do. 

Fees. 

750 

Guam. _ _ 

.. do. 

Fees. 




Minister Resident. 





John Tj. O’Sullivan._ 

Lisbon_ 


N.Y..'... 

4,500 

Secretary of Legation. 





Lisbon....... 



1,500 

Nicholas Pike.Consul 

John H. Marsh.do.. 

....... do. 

...do. 

Funchal. 

a Macao_ 

Mass. 

N. H. 

N.Y. 

N. H.... 

1,500 

1,500 

1,000 

750 

750 

Charles W. Dabney.do.. 

.do.. 

aFayal, Azores. 
aSt. Jago, Cape 
de Verds. 
^Mozambique . 
aSt. Paul’s de 
Loando. 

Mass. 

Mass. 

.do.. 



750 

John G. Willis-Com. agent 

U. S. 

Mass. 

Fees. 

BELGIUM. 





Minister Resident. 





•T. .T. Seihels___ 

Brussels_ 

s c 

Alabama. 

4,500 

Secretary of Legation. 

Brussels.. .... 



1.500 

2.500 

Alois D. Gall* . Consul 

Antwerp. 

Stuttgardt 

Indiana.. 

DOMINIONS OF THE 
NETHERLANDS. 





Minister Resident . 





August Belmont*. . 

Hague. 

Germany. 

N.Y. 

4,500 


* Naturalized. 
























































193 


Names and offices. 

Where em¬ 
ployed. 

Where 

born. 

Whence 

appointed. 

Compen¬ 

sation. 

Win. S. Campbell . Consul 

Rotterdam. . . . 

N. Y . 

N.Y . 

$2,000 

R. G. Barnwell . do.. 

Amsterdam... 

S. C. 

S. C. 

1,000 

Francis W. Cragin.do.. 

aParamaribo... 

N. H.... 

N. H. 

500 

Alfred A. Reed_Com. agent 

riBatavia, Java. 

U. S . 

Mass . 

1,000 

Charles Rey . do.. 

«St. Martin - 

W. Indies 

N.Y . 

500 

James H. Young . do.. 

aCura<?ao, W. I. 

N. Y . 

N.Y . 

500 

DANISH DOMINIONS. 





Minister Resident. 





Henry Bedinger . 

Copenhagen .. 

Virginia.. 

Virginia . 

4,500 

Secretary of Legation. 






Copenhagen 



1,500 






.. . . . Consul 

a _ do. _ 



Fees. 

H T A Rainals do 

Flsinfliir 



1,500 

AX* A • Xli J-lCllUUlO m m m m rn m m m U V « m 

DiAdripli TCnhlsaat,* dn 

a A1 torifl, _ 

Holstein 


Fees. 

David Rogers . do.. 

aSantaCruz, W. 

N. J -- 

N. J . 

750 


Indies. 




Charles J. Helm...Com. agent 

St. Thomas.W. 

N.Y. 

Kentucky 

4, 000 


Indies. 




SWEDEN AND NORWAY. 





Minister Resident. 





FYanrMR Sehroeder 

Stockholm.... 

R. I. 

R. I. 

4,500 

Secretary of Legation. 






Stockholm.... 



1,500 

.. Consul 

^Stockholm.... 



Fees. 

Alexander Barclay.do.. 

aGothenburg... 

Scotland . 


750 

TTn1mi/»li Tone An /irk 

tfRerffen Nor- 

Norway.. 


Fees. 


LMjJLJ vj 1 tiOUj i-l OL 

way. 




. do . 

nPorsgrund ... 



Fees. 

PRUSSIA. 





Envoy Extraordinary and Min¬ 





ister Plenipotentiary. 





Peter D. Yroom. 

Berlin. 

U.S. 

N. J. 

12,000 


25 * 


Naturalized, 









































194 


Names and officers. 


Where em¬ 
ployed. 


Where Whence 

bom. appointed. 


Secretary of Legation. 


O. Jennings Wise 


Berlin 


Virginia 


Virginia . 


Abel French.Consul Aix-la-Chap’lle 

Frederick Schillow.do.-aStettin. 


NY... 

Prussia 


N.Y 


AUSTRIA. 
Minister Resident. 

Henry R. Jackson. 

Secretary of Legation. 


Vienna 


Georgia.. 


Georgia.. 


George W. Lippett 
Wm. A. Buffum- 


Consul 
.. do.. 
..do.. 


Vienna 


-..-do . R. I. 

Trieste.do. 


R. I 
N.Y 


aVenice 


Scotland. 


Louisiana 


SAXONY. 


.Consul 

...do.. 


Leipsick 

^Dresden 


DUCHY OF SAXE MEININ- 
GEN HILBURGHAUSEN. 


Louis Lindner 


Consul 


aSonneberg. 


Germany . 


BAVARIA. 

Charles Obermayer Consul a Augsburg ... 


Philip Geisse.do.. 

.do.. 


WURTEMBURG. 

Max Stettheimer*.Consul 


aNuremburg.. 
Munich.. 


Germany. 
Penn .... 


Stuttgardt.... 


Germany. 


Penn .... 


N. York. 


Compen¬ 

sation. 


2, 000 

2,500 

Fees. 


4,500 


2,000 

1,000 
2, 000 
750 


1,500 

Fees. 


Fees. 


Fees. 

Fees. 

1,000 


1,000 


Naturalized. 
















































195 


Names and offices. 

Where em¬ 
ployed. 

Where 

born. 

Whence 

appointed. 

Compen¬ 

sation. 

FRANKFORT ON THE 
MAYN, 

(Including the Grand Duchy of 
Hesse Darmstadt, the Elec¬ 
torate of Hesse Cassel, the 
Duchy of Nassau, and the 
Langraviate of Hesse Hom- 
bourg.) 





Samuel Ricker.Consul 

Frankfort.... 

Maine ... 

Louisiana. 

$2,000 

BADEN. 






Carlsrue. 



1,000 

MECKLENBERG SCHWER¬ 
IN AND MECKLENBERG 
STRELITZ. 





aSchwerin. 



500 

HANSEATIC OR FREE 
CITIES. 




_ ____.Consul 

Hamburg .... 



2, 000 
2,000 

William Hildebrand*._do.. 

Bremen...... 

Germany. 

Wisconsin 

SWITZERLAND. 


Minister Resident. 





Th p.nd nrfi S Fa.v _ _ _ 

Berne ....... 

Mass .... 

Mass .... 

4,500 

Secretary of Legation. 

Berne ...._ 



1,500 

1,500 

Daniel S- Lee _Consul 

Basle. 

Virginia.. 
Penn .... 

Iowa .... 

Gee TT Gmindie _ do.. 

Zurich__... 

Penn .... 

1,500 

ATfitlianiftl RnltAn . do. . 

Geneva _ 

Ohio..... 

Indiana.. 

1,500 

SARDINIA. 



Minister Resident. 





John M. Daniel. 

Turin. 

Virginia.. 

Virginia.. 

4,500 


Naturalized. 
































196 


Names and offices. 

Where em¬ 
ployed. 

Where 

born. 

Whence 

appointed. 

Compen¬ 

sation. 

Secretary of Legation. 






Turin _.... 



$1,500 

A. Herbemont. __ Consul 

Genoa ...._ 

N. York.. 

s. c . 

1,500 

•T. B. Wilbor, sr __ do.. 

aNiee . . 

.. do_ 

N. York.. 

Fees. 


aSpezzia . - 



Fees. 

TUSCANY. 





J. A. Binda.Consul 

Leghorn. 

Italy. 

S. C. 

1,500 

Amasa Hewins _ Com. agent 

aFlorence . 

Mass . 

Mass .... 

Fees. 

PONTIFICAL STATES. 





Minister Resident. 





Lewis Cass, jr . 

Rome . 

Michigan. 

Michigan. 

4,500 

Secretary of Legation. 






Rome . 



1,500 


aRorne ........ 



Fees. 

. do.. 

aAncona __ 



Fees. 

. do.. 

aRavenna _ 



Fees. 

Franklin Torrey __ .do.. 

aCarrara. __ 

Mass .... 

Mask 

Fees. 

TWO SICILIES. 



1U Cl O O m m m m 

Minister Resident. 





Robert Dale Owen* . do.. 

Naples . 

G. Britain. 

Indiana .. 

4,500 

Secretary of Legation. 






Naples. _ 



1 500 

Alexander Hammett.. .Consul 

....do . 

Maryland. 

Maryland. 

J- y 01/1/ 

1,500 

.do.. 

Palermo. 



1 500 

F. W. Behn*.do.. 

Messina_.. 

Germany. 

Kentucky 

1,000 

TURKISH DOMINIONS. 





Minister Resident. 





Carroll Spence. 

Constantinople, 

Maryland. 

Maryland. 

6,000 


Naturalized. 












































197 


Names and offices. 

Where em¬ 
ployed. 

Where 

born. 

Whence 

appointed. 

Compen¬ 

sation. 

John P. Brown.Dragoman 

Constantinople 

Virginia.. 

Ohio. 

$2,500 


_.do....__ 



2,500 

E. S. Offley®.do.. 

Smyrna. 

Turkey .. 

Symrna.. 

2, 000 

Henry Wood.do.. 

Beirut. 

U. States. 

N. H .... 

2,000 

George Mountford..._do.. 

aCandia__ 

Mass .... 

Mass .... 

1,000 

Merino de Mattey.do.. 

aCyprus. 

Cyprus .. 

Cyprus .. 

1,000 

.do.. 

Jerusalem ... 



1,000 

UNDER THE GOVERNMENT OF 




THE PACHA OF EGYPT. 





Consul General. 





Edwin de Leon. 

Alexandria... 

U. States. 

S. C. 

3,500 

GREECE. 





Jr»nas TCi n g - - - Act-mg consul 

fflAthena_ 

U. States. 


1,000 





IONIAN REPUBLIC. 





Amns S York_Consul 

aZante.____ 

Greece .. 

Zante.... 

1,000 

BARBARY STATES. 





____ Consul 

Tangiers, Mo¬ 



2,500 


rocco. 



Marcus J. Gaines.do.. 

Tripoli. 

Virginia.. 

Virginia.. 

2,500 

Wm. P. Chandler.do.. 

Tunis. 

Delaware. 

Delaware. 

2,500 

Juda Sol. Levy-Com. agent 

nTetuan.Mor’co 

Barbary.. 


Fees. 

Meshod Abecasis.do- 

aLarache &. Ar- 

_do_ 


Fees. 

zila, Morocco. 




AFRICA. 





. Com. agent 

^Monrovia_ 



1,000 

TT^nru A "EViiyI do_ 

aGaboon ...... 



Fees. 

DOMINIONS OF THE SUL¬ 





TAN OF MUSCAT. 





William McMullan.Consul 

als’dof Zanzibar 

U. States. 

Mass .... 

1,000 


aMuscat. 



Fees. 


* An American citizen, born abroad. 


« • 













































198 


Names and offices. 

Where em¬ 
ployed. 

Where 

born. 

Whence 

appointed. 

Compen¬ 

sation. 

SUMATRA. 





Franklin D. Reed..Com. agent aPadang. 

U. States. 

Mass .... 

$500 

BORNEO. 





Cnnsnl TSriini 




JAPAN. 

- 




Townsend Harris..Consul Gen 

Simoda_ 


N. York.. 

5, 000 

__Consul 

Hakodadi 



CHINA. 





Commissioner. 





Peter Parker... 

Canton 

Mass .... 

Mass .... 

15,000 

Interpreter and Secretary of Le¬ 




gation. 





S. Wells Williams. 

Canton ^ 

Mass 

Mass .... 

2,500 

Oliver H. Perry.Consul 

....do. 

-do- 

-do_ 

3, 000 

Caleb Jones.do.. 

Fuh Chau.... 

Mass. 

Virginia.. 

2,500 

Thomas H. Hyatt.do.. 

Amoy. 

N. York.. 

N. York.. 

2, 500 

Robert C. Murphy.do.. 

Shanghai. 

U. States. 

Ohio. 

3, 000 


Ningpo_ 



2,500 





SANDWICH or HAWAIIAN 





ISLANDS. 





Commissioner. 





David L. Gregg.____ 

Honolulu . 

N. York.. 

Illinois 

5, 000 

Darius A. Ogden.Consul 

....do. 

-do- 

N. York.. 

4,000 

George M. Chase__do.. 

fl,T jfthnina 

Vermont 

M a i n o 

1, 000 

Thomas Miller ...do.. . 

aHilo_ 

Virginia.. 

Hilo 

l’ 000 

FRIENDLY AND NAVIGA¬ 

M 



TOR’S ISLANDS. 





Aaron Van Camp..Com. agent < 

aApia. 


California. 

1,000 



















































199 


Names and offices. 


SOCIETY ISLANDS. 
Wm. H. Kelly.Consul 

NEW ZEALAND. 

John B. Williams.Consul 

FEJEE ISLANDS. 

John B. Williams..Com. agent 

HAYTI OR SAN DOMINGO. 
Commercial Agents. 


aBay of Islands. 


aLanthala. 


Joseph N. Lewis. 
Jonathan Elliot. 


G. Eustis Hubbard. 


MEXICAN REPUBLIC. 

Envoy Extraordinary and Min¬ 
ister Plenipotentiary. 


James Gadsden. 


Secretary of Legation. 

John Cripps. 

John T. Pickett. 


Maine.... 


England . 


John Black.Consul aMexico New York 

S. D. Mullowney.do.. 

Franklin Chase.do.. 

.do.. 

Charles L. Denman.do.. 

.do.. 

.do.. 

.do.. 

.do.. 

.do.. 

David R. Diffenderffer_do.. 

Thomas Sprague...Com. agentJaLa Paz, San| U. S 

Jos6, & Cape 
St. Lucas. 


Where em¬ 
ployed. 


aTahiti 


Port au Prince 
St. Domingo & 
Porto Plata. 
aCape Haytien 
aAux-Cayes . 


Mexico. 


Mexico. 

Yera Cruz.... 


aMexico. 

aMonterey. 

aTampico. 

aMatamoras_ 

Acapulco .... 

aTabasco. 

aCampeche.... 

Mazatlan. 

San Bias. 

Guaymas. 

Paso del Norte! Penn 


Where 

born. 


St.Thomas 


Mass 


Mass. 


U. S_ 

Dist. Col 


Mass. 


S. C. 


s. c. 

Kentucky 


Whence 

appointed. 


Mass .... 


Mass .... 


Mass. 


Mass- 

Dist. Col 

Mass. 


S. C. 


California 

Kentucky 

New York 
Texas.... 
Maine.... 


California. 


Penn. 

California 


Compen¬ 

sation 


$ 1,000 


1,000 


1,000 


2,000 

1,500 

1,000 

500 


12,000 


2, 000 

3,500 

1,000 
Fees. 
1,000 
1,000 
2,000 
500 
Fees. 

500 

Fees. 

Fees. 

500 

Fees. 

























































200 


Names and offices. 

vVhere em¬ 
ployed. 

Where 

born. 

Whence 

appointed. 

Compen¬ 

sation. 

Ramon J. y Petrullo* - do. . 

Merida & Sisal 

Salamanca 

New York 

; Fees. 

S. C. Pilkington . do.. 

Tehuantepec.. 

Kentucky 

Kentucky 

$1,000 

James A. Pleasants.do.. 

Minatitlan.... 

Virginia.. 

Ohio. 

1,000 

William Hubotter*.do.. 

aLaguna, Car- 

Germany. 

U.S. 

Fees. 


men Island. 





^Chihuahua.... 



Fees. 

William Foster.do. . 

^Manzanillo — 

Mass - 

Penn . 

Fees. 

W. W. Banks . Consul 

aAguasCal’ntes 

Virginia.. 

Virginia.. 

Fees. 

NICARAGUA. 





Minister Resident. 





John H. Wheeler . 

Nicaragua.... 

N. C . 

N. C... 

4,500 

Secretary of Legation. 




Nicaragua. 



1,500 





B. Squire Cotrell . Consul 

San Juan del 



2,000 


Norte. 



John Priest . do.. 

San Juan del 

Penn . 

Penn . 

2,000 


Sur. 




GUATEMALA. 





Minister Resident. 





John L. Marling . 

Guatemala . 



4,500 

Secretary of Legation. 





Guatemala,.. 



1 , 500 


_do _ 



Fees. 

COSTA RICA. 




Marquis L. Hine . Consul 

aSan Jose . 

New York 


500 

SAN SALVADOR. 




Henry C. Matsell. 

La Union. 

New York 

New York 

Fees. 

HONDURAS. 

# 




A. Follin. 

aOmoa & Trux- 

New York 

New York! 

1,000 


illo. 





Naturalized. 

















































201 


Names and offices. 

Where em 
ployed. 

Where 

boin. 

Whence 

appointed. 

NEW GRANADA. 

Minister Resident. 

James B. Bowlin. 

Bogota__ 



Secretary of Legation. 

Bogota_ 



Ramon Leon Sanchez. .Consul 

aCartagena..,. 
aSanta Martha. 
^Panama 

Florida... 

Florida... 

Tfaos. Wm. Ward.do.. 

John A. Bennet.do.. 

Geo. W. Fletcher.do.. 

John Capela, jr* _ do.. 

Ireland... 
U. S.. 

Texas.... 

«Bogota_ 

fcAspinwall_ 

aTurbo........ 

Mass. 

Abroad 

Alabama. 


aSabanillo. 



VENEZUELA. 

Minister Resident. 

Chnrlos F.arrip.s__ 

Caracas__ 


. .... 

; 

Secretary of Legation. 

Caracas_ 



R. H. Swift.Consul 

Southy Grinalds.do.. 

Isaac T. Golding.do.. 

.do.. 

a Maracaibo.... 
aPuerto Cabello 
h Laguayra . 

Penn. 

Virginia.. 
N. J. 

Penn .... 
Virginia.. 

nCiudad Bolivar 

Quito. 



ECUADOR. 

Minister Resident. 

Philo Whito . _ __ 

New York 

Wisconsin 

Secretary of Legation. 

Quito........ 

* 

M. P. Game.Consul 

BRAZIL. 

Envoy Extraordinary and Min- \ 
ister Plenipotentiary. 

William Trousdale 

^Guayaquil.... 

Rio de Janeiro 

Rio de Janeiro 

Penn. 

j N. C. 

! Penn. 

Tennessee 

Secretary of Legation. 

Wm. G. Mann. 



26 * 


Compen • 
sation. 


$4,500 


1.500 

500 

Fees. 

3.500 
Fees. 

2.500 
Fees. 

500 


4,500 


1,500 

750 

750 

1,500 

750 


4.500 

1.500 
750 


12,000 


2 , 006 


Naturalized. 
























































202 


Names and offices. 


Where em¬ 
ployed. 


Robert G. Scott.ConsuliRio de Janeiro 


William Lillev*.do.. 

Henry B. Dewey.do.. 

.do 

Robert S. Cathcart.do.. 

Alfred H. Hanscom.do.. 

J. S. Gilmer.do.. 

Alexander Thompson_do.. 


URUGUAY, OR CISPLA 
TINE REPUBLIC. 

Robert M. Hamilton. ..Consul 


BUENOS AYRES. 
Minister Resident. 

James A Peden. 

Secretary of Legation. 


b Pernambuco.. 

aPara. 

aSantos. 

«St. Catharine’s 
Island. 
aRio Grande... 
«Bahia de San 
Salvador. 
«Maranham.... 


^Montevideo .. 


Buenos Ayres. 


Win. H. Hudson.Consul 

Wm. H. Smiley.do.. 

PARAGUAY. 

Louis Bamberger*'.Consul 

CHILE. 

Envoy Extraordinary and Min¬ 
ister Plenipotentiary. 

David A. Starkweather. 

Secretary of Legation. 

Frederick A. Beelen. 


Buenos Ayres. 

b .do. 

aRlo Negro.... 


a Asuncion .... 


Where 

born. 


Georgia.. 
England . 
Maine.... 


Mass. 


New York 
Penn... 


Scotland . 


Maryland. 


Whence 

appointed. 


Virginia. 

Ohio_ 

Penn. 


Mass. 


Michigan. 
Maryland. 

Brazil.... 


Maryland, 


n: c.-j.. 


Conn 
R. L. 


Germany. 


SantIago. 


SantIago. 


George B. Merwin.Consult Valparaiso_ 

William Crosby.do.. aTalcahuano... 

Samuel F. Haviland.do. .|rtCoqnimb'o_ 


Penn. 


New York 
New York 


Florida... 


Conn . 
R. I. 


New York 


Ohio. 


Penn. 


Ohio.. 
..do... 


Compen¬ 

sation. 


$ 6 , 000 
2 , 000 
1,000 
Fees. 
Fees. 

1,000 

1,000 

750 


1,000 


4,500 


1,500 

2, 000 

Fees. 


Fees, 


9,000 


1,500 

3,000 
1,000 
Fees, 


Naturalized. 

















































203 


Names and offices. 

Where em¬ 
ployed. 

Where 

born. 

Whence 

appointed. 

Compen¬ 

sation. 

PERU. 





Envoy Extraordinary and Min¬ 
ister Plenipotentiary. 





John Randolph Clay. 

Lima. 

Ponn. 

Penn 

$1(1,000 

Secretary of Legation. 




Z. B. Caverly. 

Tima 

N. H. 

New York 

Mass .... 

California 

2, 000 

3,500 
Fees. 
500 
500 

"William Miles.Consul 

ft Callao 

Joseph W. Clark.do.. 

aArica. 

Fayette M. Ringgold.do.. 

Samuel J. Oakford.do.. 

aPaita. 

Dist. Col. 

Dist. Col. 

aTumbez. 

BOLIVIA. 




Minister Resident. 





John W. Dana. 

Chuquisaca... 

Maine.... 

Maine.... 

4,500 


Secretary of Legation. 

Chuquisaca 



1,500 






LIST OF DEPUTY CONSULS, VICE CONSULS, CONSULAR AGENTS, AND VICE 
COMMERCIAL AGENTS, WHO ARE RECOGNISED AS SUCH BY THIS DE¬ 
PARTMENT. 


Those marked thus (a) are citizens of the United States. Those marked thus (6) are tempor¬ 
arily employed. 


Name. 

<- 

Office. 

Place. 

ft James Carscaden.. 

Consular agent.. 
Consular agent.. 
Consular agent.. 
Vice consul_ 

Londonderry. 

Southampton. 

Freemantle, Australia. 

Hobart Town. 

Barmen. 

Crefeld. 

Halifax, Nova Scotia. 
Charlottetown, Nova Scotia. 
Cascumpie, Nova Scotia. 
Yarmouth, Nova Scotia. 

Souris, Prince Edward’s Island. 
St. Johns, Newfoundland. 
Inagua, Bahamas. 

«E d ward Martineau......... 

aThomas Pope... 

ftD. McPherson.....__ 

a John H. Albers. 

ftPeter Von Winkleman. 

ftT. M. Braine. 

aW. B. Dean.... 

i Consular agent.. 

| Consular agent.. 
Deputy consul.. 
Consular agent.. 
Consular agent.. 
Consular agent.. 
Consular agent.. 
Vice consul__ 

aG M. Rider. 

ft Henry A. Grantham.... 

aJoseph L. McDonald. 

ft.T. W. Pronsse..__ 

aDaniel Sargent.| 

Consular agent.. 


* Naturalized. 



















































204 


Name. 

Office. 

Place. 

aO. WhitalrAr _ 

Vice consul..... 

St. John’s, New Brunswick. 
Nassau, Bahamas. 

«.Tohn R,. Rap,on_ 

Vice consul..... 

«R. Lewis__ 

Vice consul..... 

Calcutta. 

b E. H. Francheville. 

Consular agent.. 

Guysboro’. 

bS. 13. Landry. 

Consular agent.. 

Demarara. 

aG. Mitchell. 

Consular agent.. 

Newcastle, Australia. 

aCkristopher McRae. 

Deputy consul.. 

Paris. 

bW. A. Opisso. 

Consular agent.. 

Tarragona. 

«H. J. Sprague. 

Consular agent.. 

Algeziras. 

aTkomas Clarke. 

Vice consul. 

Malaga. 

aHenry Harris.. . 

Consular agent.. 

Cardenas. 

b Charles DeAguirre. 

Deputy consul .. 

Bilbao. 

b R. Overmann. 

Consular agent.. 

Bara^ao. 

«R. Gibbs. 

Consular agent.. 

Nuevitas. 

b F. Richard. 

Consular agent.. 

Manzanilla. 

gF. W. Preston. 

Consular agent.. 

Guaymas. 

bT. Turell. 

Consular agent.. 

Mayaguez. 

b J. Stone. 

Consular agent.. 

San Juan. 

oC. D. Fowler. 

Consular agent.. 

Cienfuegos. 

«J. P. C. Thompson. 

Consular agent.. 

Sagua. 

b Charles Le Bran..__ 

Vice consul.__ 

Tene rifle. 

^Frederic Dabney. 

Deputy consul.. 

Fayal. 

b Thomas Hicking. 

Consular agent.. 

St. Michael’s. 

aA. Herbemont, jr. 

Deputy consul... 

Genoa. 

aW. C. Long. 

Consular agent.. 

Spezzia. 

iS. B. Rawle... 

Vice consul._ 

Macao. 

aW. W. Richmond. 

Consular agent.. 

Ghent. 

flWm. Moore. 

Consular agent.. 

Frederickstadt. 

a Joseph Ridgway. 

Vice consul. 

St. Thomas. 

b Robert Rettig. 

Consular agent.. 

Gefle. 

b Lewis Ferro. 

Deputy consul... 

Naples. 

aFelix Flugel. 

Vice consul. 

Leipsic. 

a Sami. Bromburg. 

Vice consul. 

Hamburg. 

aA. H. Wappaus. 

Vice consul. 

Ciudad Bolivar. 

aRobt. G. Scott, jr. 

Deputy consul... 

Rio de Janeiro. 

b C. M. Y. Arango. 

Consular agent.. 

San Jos6 del Norte, Brazil. 

bj. D. Sanchez. 

Deputy consul .. 

Cartagena. 

aA. B. Boyd. 

Vice consul. 

Aspinwall. 

aGeo. B. Merwin. 

Deputy consul.. 

Valparaiso. 

JThos. J. Deigan. 

Deputy consul.. 

Matamoras. 

aA. C. Allen._______ 

Vice consul 

Minatitlan. 

bM. E. Dututre. 

Vice com’l agent. 

Aux Cayes. 

oG. Eustis Hubbard. 

Vice con’l agent. 

Cape Haytien. 

Edward Proth. 

Vice com’l agent. 

Porto Plata. 

aSumner J. Brooks. 

Vice com'l agent. 

Gonaives. 

aArthur Folsom. 

Vice com’l agent. 

Jeremie. 

b J. Pereira. 

Vice com’l a|ent. 

St. Domingo. 

b D. Whippy. 

Vice consul. 

Lanthala. 

aj. Foil in.......... 

Vice consul 

Omoa and Truxillo. 

Lanthala. 

iThos. F. McDonell. 

Consular agent.. 

6Thos. Lewis. 

Consular agent.. 

Bay of Islands. 









































































H. 

OPINION OF THE ATTORNEY GENERAL 


CONCERNING THE 

JUDICIAL AUTHORITY OP THE COMMISSIONER OR MINISTER AND OF CONSULS 
OF THE UNITED STATES IN CHINA AND TURKEY. 


Department of State, 

October 8, 1855. 

The following opinion of the Attorney General, on 
the judicial authority of the commissioner or minister 
and of consuls of the United States in China and Turkey, 
is published for their instruction: 

Attorney General’s Office, 

September 19, 1855. 

Sir : Your communication of the 13th of June calls 
for my opinion as to certain points in the judicial juris¬ 
diction of the commissioner and consuls of the United 
States in China. My reply has been delayed for the 
purpose of conference with Mr. McLane, the late, and 
Mr. Parker, the present, commissioner. I now pro¬ 
ceed to state the conclusions to which reflection has 
brought me. 

That jurisdiction, so far as regards the forms and the 
manner of its exercise, is regulated by the act of 
August 11, 1848, which purports to have for its object 
to carry into effect certain provisions, in this relation, 
contained in the respective treaties between the United 
States and China, and the United States and the Otto¬ 
man Porte, (ix Stat. at Large, p. 276.) 

This act, consisting of twenty-four sections, is, of 
course, to be considered as a whole; and anything 
21 



206 


obscure in one part of it is to be elucidated by refer¬ 
ence to other parts. 

It is, avowedly, based on the two treaties in question, 
and especially that with China, and is to be construed 
in subordination to that, and to the constitution. 

In substance, it accepts and gives actual form to 
those stipulations of treaty, which confer on all citizens 
of the United States the rights of exterritoriality in 
China and Turkey. 

The legal rationale of the treaty stipulations as to 
China, with which we are now chiefly concerned, and 
their relation to the legislative authority of the United 
States, are explained in the following despatch of the 
minister who negotiated the treaty: 

“ I entered China with the formed general conviction that 
the United States ought not to concede to any foreign state, 
under any circumstances, jurisdiction over the life and 
liberty of a citizen of the United States, unless that for¬ 
eign state he of our own family of nations,—in a word, a 
Christian state. 

“ The states of Christendom are hound together hy trea¬ 
ties, which confer mutual rights and prescribe reciprocal 
obligations. They acknowledge the authority of certain 
maxims and usages, received among them by common con¬ 
sent, and called the law of nations ; hut which, not being 
fully acknowledged and observed hy the Mohammedan or 
Pagan states, which occupy the greater part of the globe, 
is, in fact , only the international law of Christendom. 
Above all, the states of Christendom have a common origin, 
a common religion, a common intellectuality ; associated hy 
which common ties, each permits to the subjects of the other, 
in time of peace, ample means of access to its dominions 
for the purpose of trade, full right to reside therein, to 
transmit letters hy its mails, to travel in its interior at 
pleasure, using the highways, canals, stagecoaches, steam- 


207 


boats, and railroads of the country as freely as the native 
inhabitants. And they hold a regular and systematic inter¬ 
course as governments, by means of diplomatic agents of 
each, residing in the courts of the others, respectively. All 
these facts impart to the states of Christendom many of the 
qualities of one confederated republic. 

“ How different is the condition of things out of the 
limits of Christendom ! From the greater part of Asia and 
Africa, individual Christians are utterly excluded, either by 
the sanguinary barbarism of the inhabitants, or by their 
phrensied bigotry, or by the narrow-minded policy of their 
governments. To their courts, the ministers of Christian 
governments have no means of access except by force, and 
at the head of fleets and armies. As between them and us, 
there is no community of ideas, no common law of nations, 
no interchange of good offices; and it is only during the 
present generation, that treaties, most of them imposed by 
force of arms or by terror, have begun to bring down the 
great Mohammedan and Pagan governments into a state of 
inchoate peaceful association with Christendom. 

“ To none of the governments of this character, as it 
seemed to me, was it safe to commit the lives and liberties 
of citizens of the United States. 

“ In our treaties with the Barbary states, with Turkey, 
and with Muscat, I had the precedent of the assertion, on 
our part, of more or less of exclusion of the local jurisdic¬ 
tion, in conformity with the usage, as it is expressed in one 
of them, observed in regard to the subjects of other Christian 
states. 

“Mr. Urquhart thinks these concessions have not been wise 
on the part of the Mohammedan states. It may be so for 
them ; but it will be time enough for them to obtain juris¬ 
diction over Christian foreigners, when these last can visit 
Mecca, Damascus, or Fez, as safely and freely as they do 
Rome and Paris, and when submission to the local jurisdic¬ 
tion becomes reciprocal. 

u Owing to the close association of the nations of Christ- 


20S 


endom, and the right their people mutually enjoy and exer¬ 
cise, of free entry into each other’s country, there is recipro¬ 
city in the recognition of the local jurisdiction. Not so in 
the case of the great Moslem or Pagan states of Asia and 
Africa, whose subjects do not generally frequent Europe and 
America, either for trade, instruction, or friendship. 

“ In China, I found that Great Britain had stipulated for 
the absolute exemption of her subjects from the jurisdiction 
of the empire; while the Portuguese attained the same 
object through their own local jurisdiction at Macao. * * 

“ I deemed it, therefore, my duty, for all the reasons 
assigned, to assert a similar exemption on behalf of citizens 
of the United States. This exemption is agreed to in terms 
by the letter of the treaty of Wang-Hiya. And it was fully 
admitted by the Chinese, in the correspondence, which oc¬ 
curred contemporaneously with the negotiation of the treaty, 
on occasion of the death of Sha Aman. 

u By that treaty, thus construed, the laws of the Union 
follow its citizens, and its banner protects them, even within 
the domain of the Chinese empire. 

“ The treaties of the United States with the Barbary 
powers, and with Muscat, confer judicial functions on our 
consuls in those countries, and the treaty with Turkey places 
the same authority in the hands of the minister or consul, 
as the substitute for the local jurisdiction, which, in eacli 
case of controversy, would control it if it arose in Europe 
or America. These treaties are in this respect accordant 
with general usage, and with what I conceive to he the 
principles of the law of nations in relation to the non- 
christian powers. ► 

“ In extending these principles to our intercourse with 
China, seeing that I have obtained the concession of absolute 
and unqualified exterritoriality, I considered it well to use 
in the treaty terms of such generality, in describing the 
substitute-jurisdiction, as, while they hold unimpaired the 
customary or law-of-nations-jurisdiction, do also leave to 
Congress the full and complete direction to define, if it 


209 


please to do so, what officers, with what powers, and in 
what form of law, shall he the instruments for the protection 
and regulation of the citizens of the United States. 

“ And it only remains, in case the treaty shall be ratified, 
to adopt such legislative provisions as the wisdom of the 
President and of Congress may desire or approve, to give 
efiect to the concessions, which the Chinese government has 
made in this matter, and which seem to me so important in 
principle, and so material to the honor and interests of the 
United States.’’ (Mr. Cushing to Mr. Calhoun, September 
29, 1844. MS., State Dept.) 

This anticipated dependence of the act on the treaty 
is plainly expressed by it, in so far as regards the civil 
jurisdiction of the commissioner and consuls, when it 
says* “Which jurisdiction shall embrace all contro¬ 
versies between citizens of the United States or others 
provided for by said treaty.” (Sec. 3d.) And in the 
text of the act, as well as its title, it purports “to carry 
into efiect” or into “full effect” the provisions of the 
treaty. 

The criminal jurisdiction conferred by the act is 
general in terms, without, however, as we shall see 
hereafter, overstepping the treaty. Whether the civil 
jurisdiction is broader than that of the treaty, is to be 
decided by its enactments. I do not perceive any 
provision of the act, in this respect, which goes beyond 
the treaty. Any provision, to have such effect, must 
be affirmative and reasonably explicit; because the 
tribunals, constituted by the act as well as the treaty, 
are special ones, having limited jurisdiction, namely, 
that which is conferred by treaty or statute. I repeat, 
that nothing appears, in the course of the act, capable 
of imparting jurisdiction beyond the persons and 
predicaments provided for by the treaty stipulations. 


210 


Hence, incontestably, in exploring the intent of the 
statute, we must be careful at no time to lose sight of 
the provisions of the treaty, at least in the questions of 
jurisdiction. 

Let us now trace, through the treaty and statute, 
the persons who are to exercise this jurisdiction, the 
forms of its exercise, the laws it is to administer, and 
the persons and the conditions of its application. 

“For the superintendence and regulation of the concerns 
of the citizens of the United States doing business at the 
said five ports” (of China), says the treaty, “the government 
of the United States may appoint consuls, or other officers, 
at the same, who shall he duly recognised as such by the 
officers of the Chinese government.” (Art iv.) 

After which it proceeds: 

“All questions in regard to rights, whether of property 
or person, arising between citizens of the United States in 
China, shall be subject to the jurisdiction, and regulated by 
the authorities , of their own government. And all contro¬ 
versies occurring in China between citizens of the United 
States and the subjects of any other government, shall he 
regulated by the treaties existing between the United States 
and such governments, respectively, without interference on 
the part of China.” (Art. xxv.) 

“And if controversies arise between citizens of the United 
States and subjects of China, which cannot he amicably 
settled otherwise, the same shall he examined and decided 
conformably to justice and equity by the public officers ot 
the two nations acting in conjunption.” (Art. xxiv.) 

Finally, iu regard to crimes, it is agreed that— 

“Citizens of the United States, who may commit any 
crime in China, shall he subject to-be tried and punished 
only by the consul, or other public functionary of the United 
States, thereto authorized according to the laws of the 
United States.” (Art. xxi.—See viii Stat. at Large, pp. 
592, 69T.) * 


211 


On attentive consideration of the provisions, it will 
be seen that they confer on citizens of the United 
States in China unqualified and absolute exterritoriality 
in all criminal matters; and that the sole jurisdiction 
of the United States over its citizens in China is 
plainly perfect in terms, except in the following cases: 

1. Where, in a matter of civil right, it involves 
controversy between a Chinese and an American, then 
the authorities of the two governments are to have 
concerted action. 

2. Where it involves controversy between an Ameri¬ 
can and some person other than Chinese, as English or 
French, for example, then its adjustment is to be 
regulated by the international relations of the .United 
States, and of Great Britain or France. 

3. Whether any of the provisions quoted apply to a 
case of civil right in which some government is a 
party, on the one side, and a citizen of the United 
States on the other, is a question to be considered more 
particularly in the sequel. 

In our treaty with the Ottoman Porte, the stipula¬ 
tions of exterritoriality are less explicit. In terms, it 
seems to be imperfect; but, interjecting into each 
stipulation its true construction, it will be seen that, 
so far as they go, they accomplish the object as 
follows: 

“If litigations and disputes arise between the subjects of 
the Sublime Porte and citizens of the United States, the 
parties shall not be heard nor shall judgment be pronounced 
unless the American dragoman be present. Causes (between 
subjects of the Porte and citizens of the United States) in 
which the sum (in controversy) may exceed five hundred 
piastres, shall be submitted to the Sublime Porte, to be de¬ 
cided according to the laws of equity and justice. Citizens 


of the United States of America, quietly pursuing their 
commerce, (or other affairs in the Turkish empire, including 
the countries subject to its suzerainty), and not being 
charged or convicted of any crime or offence, shall not be 
molested (either by acts of violence, or by any claim or 
pretence of local jurisdiction); and even when they may 
have committed some offence, they shall not be arrested or 
put in prison by the local authorities, but they shall be 
tried by their minister or consul, and punished according to 
their offence, following, in this respect, the usage observed 
towards other Franks, (that is, tried and punished by the 
authorities and the laws of the United States).” (Art. xxi, 
viii Stat. at Large, p. 409.) 

In order to execute these treaties,—to carry the laws 
of the United States into Turkey and China,—to 
have our territorial jurisdiction follow our people and 
our flag into those empires,—persons clothed with law¬ 
ful authority are the necessary instruments. In the 
treaty with Turkey they are spoken of as the “minister 
or consul” of the United States; in that with China, as 
“consuls or other officers,” “public officers,” the “con¬ 
sul or other public functionary,” and “the authorities,” 
of the United States. Then comes in the statute, which 
provides for the exercise of judicial power over the 
citizens of the United States in the cases which it de¬ 
fines, by “the commissioner and consuls of the United 
States duly appointed to reside in China,” (sec. 1); and 
by “the minister of the United States and the consuls 
appointed by the United States to reside” in Turkey, 
(sec. 22): it being provided that the term “commis¬ 
sioner,” like that of “minister,” is intended for “the 
person vested with the powers of chief diplomatic 
functionary of the United States,” and the term “con¬ 
sul” for “any person vested by the United States with, 


and exercising, the consular authority,” in Turkey or 
China. 

It is observable that the statute provides in terms 
for the exercise of judicial powers by the ministers 
and consuls in Turkey only “so far as regards the 
punishment of crime,” (sec. 22). I think this is a 
defect, if not oversight, in the act. It leaves all ques¬ 
tions of civil jurisdiction to the vagueness of the 
general analogies of public law as applied to Franks in 
the Levant. What is to follow, therefore, is only in 
part applicable to Turkey, and will be stated mainly as 
affecting China, (Mr. Toucey’s Opinion, Jan. 31, 1849, 
ed. 1851, p. 2136. 

In thus retaining jurisdiction of our citizens in China, 
and providing persons to exercise it, we could not rely 
upon the law of nations exclusively, nor upon usages, 
or a customary local code applicable to the emergency, 
such as exists in the Levant. Accordingly, the statute 
contains the following important provision: 

u That such jurisdiction in criminal and civil matters 
shall, in all cases, be exercised and enforced in conformity 
with the laws of the United States, which are hereby, so far 
as is necessary to execute said treaty, extended over all 
citizens of the United States in China, (and over all others 
to the extent that the terms of the treaty justify or require), 
so far as such laws are suitable to carry said treaty into 
effect; but in all cases where such laws are not adapted to the 
object, or are deficient in the provisions necessary to furnish 
suitable remedies, the common law shall be extended in like 
manner over such citizens and others in China; and if defects 
still remain to be supplied, and neither the common law nor 
the statutes of the United States furnish appropriate and 
suitable remedies, the commissioner shall, by decrees and 
regulations, which shall have the force of law, supply such 
defects and deficiencies.’’ 

28 * 


214 


The system of law is composed, therefore, of— 

1. The laws of the United States, comprehending the 
constitution, treaties, acts of Congress, equity and ad¬ 
miralty law, and the law of nations, public and private, 
as administered by the Supreme Court, and circuit and 
district courts of the United States, and, in certain 
cases, regulations of the Executive Departments. 

2. “The common law.” In this respect, the statute 
furnishes a code of laws for the great mass of civil or 
municipal duties, rights, and relations of men, such as, 
within the United States, are of the resort of the courts 
of the several States. 

Some general code in these respects became neces¬ 
sary, because the law of the United States,—that is, the 
federal legislation,—does not include these matters, and, 
of itself, would be of no avail towards determining 
any of the questions of property, succession, contract, 
which constitute the staple matter of ordinary life. 

For such of the States as were founded in whole or 
chief part by colonists from Great Britain and Ireland, 
or their descendants, the law of England, as it existed in 
each of those States at the time of their separation 
from Great Britain, with such modifications as that law 
had undergone by the operation of colonial adjudication, 
legislation, or usage, became the common law of such 
independent State. 

Meantime, in addition to many changes, differing 
among themselves, which the common law underwent 
in each of the colonies before it became a State, that 
common law has been yet more largely changed by 
the legislation and judicial construction of each of the 
States. 

Hence, it was not enough to enact that the common 


215 


law should intervene to supply, in China, deficiencies 
in the law of the United States. For the question 
would be sure to arise : What common law ? The 
common law of England at the time when the British 
colonies were transmuted into independent republican 
States ? Or the common law of Massachusetts ? Or that 
of New York, or Pennsylvania, or Virginia? For all 
these are distinct, and in many important respects 
diverse, “common law.” 

To dispose of this difficulty, the statute went one 
step further, and enacted, that— 

3. “Decrees and regulations” may be made from 
time to time by the commissioner, which shall have 
the force of law, and supply any defects or deficiencies 
in the common law and the laws of the United States. 

This power of supplementary decree or regulation 
serves to provide for many cases of criminality, which 
neither federal statutes nor the common law would 
cover. 

In addition to which, it is enacted that the commis¬ 
sioner, with advice of the several consuls, shall pre¬ 
scribe the forms of processes to be issued, the mode 
of executing the same, the form of oaths, the costs and 
fees to be allowed and paid; and generally to make 
all such decrees, regulations, and orders, under the act, 
as the exigency may demand, which shall be “binding 
and obligatory until annulled or modified by Congress.” 
(Sec. 5.) 

In certain respects, therefore, the commissioner legis¬ 
lates for citizens of the United States in China; it being 
required, meanwhile, that such “regulations, orders, 
and decrees,” as he may make in the premises, shall be 
transmitted “to the President, to belaid before Con¬ 
gress for its revision.” (Sec. 6.) 


216 


The statute then proceeds to describe in detail the 
manner in which the commissioner and the consuls are 
to administer law in China. 

First, it is enacted that said “ public functionaries ” 
are empowered u to arraign and try,” in a certain man¬ 
ner, all citizens of the United States u charged with 
offences against law ” which shall be committed in 
China, and upon conviction, to sentence such offenders, 
and to issue, “each of them,” such processes as are 
necessary to carry this authority into execution; and, 
secondly, that, in regard to civil rights, whether of 
person or property, said functionaries are “ vested with 
all the judicial authority necessary to execute the pro¬ 
visions of the said treaty.” (Sec. 2 and 3.) 

In regard to criminal matters, each consul, within 
the limits of his consular circumscription, is empowered, 
upon personal knowledge, belief, complaint, or informa¬ 
tion in writing, to cause the arrest of any citizen of 
the United States charged with the commission of 
crime in China, to try the offender, and to punish, by 
fine or imprisonment, under the following conditions: 

In all cases where the fine does not exceed one 
hundred dollars, or the imprisonment sixty days, the 
consul may, if he see fit, hear and decide alone, and 
by his own mere authority. (Sec. 7, 8.) 

In all cases where the fine is more than one hundred 
dollars, but not more than five hundred, or the impris¬ 
onment more than sixty days, but not more than ninety, 
the consul may hear and decide alone, but subject to 
an appeal to the commissioner. (Sec. 9.) 

In all the foregoing cases, if the consul see fit, and 
in all cases of higher punishment, of necessity, he will 
summon one or more citizens of the United States, not 


217 


exceeding four, to sit with him in the trial. Each of 
such assessors shall enter and sign of record his opinion 
in the case, which, however, shall be decided still by 
the consul. If he and his assessors concur in opinion, 
the decision is final; but if they differ, the case, with 
the record and all the evidence, shall be referred to 
the commissioner, who may either determine it, or, if 
he choose, remit the case with instructions to the con¬ 
sul for further proceedings. (Sec. 10.) 

In capital cases, which, as enumerated by the act, 
are “murder, insurrection, or rebellion against the 
Chinese government with intent to subvert the same,” 
the provision is, that the consul must always proceed 
with four assessors; he and they must all concur in 
opinion to produce conviction, and the conviction is 
invalid unless approved by the commissioner; who, if 
he approve it, is either to issue a warrant of execution, 
or postpone the same, or, in his discretion, submit the 
case to the President of the United States for pardon. 
(Sec. 15, 16.) 

In regard to civil matters, the provision is, that, in 
“all civil cases under said treaty,” the consuls have 
jurisdiction, each within his consular circumscription, 
to try of himself, and decide finally, any controversy 
where the damage demanded does not exceed five 
hundred dollars. If it exceed five hundred dollars, 
then of necessity, and in other cases if the consul see 
fit, he is to summon to his aid not less than two, nor 
more than three, citizens of the United States as assessors, 
who shall with him hear the case. If the associates 
concur in opinion with the consul, his decision is final; 
but if they differ with him, their opinions are to be 
noted on the record, and either party may appeal from 
his decision to the commissioner. (Sec. 11.) 


218 


The commissioner is fully authorized to hear and 
decide all cases, which lawfully reach him under the 
provisions of the act, and u to decide finally any case 
upon the evidence which comes up with it, or to hear 
the parties further, if he thinks justice will be promoted 
thereby; and he is empowered to prescribe rules upon 
which new trials may be granted, either by the consuls 
or by himself, if asked for upon justifiable grounds ” 
(Sec. 13.) 

Although it is nowhere said by the statute, in so 
many words, that the judicial authority of the commis¬ 
sioner in the trial of the above described cases, civil or 
criminal, is appellate only, yet such appears to me to 
be its true legal intendment. No original jurisdiction 
in these two classes of cases is given to him in express 
terms by the statute. It is all conferred in express 
terms on the consuls. In capital cases, it is plainly 
enacted that the consul and his assistants convict, and 
the “commissioner approves the conviction,” the pre¬ 
vious conviction being essential, and approval or 
disapproval being in the nature of things a separate 
act. In all other criminal cases, and in all the civil 
cases mentioned, the matter comes to the commissioner 
by appeal, or by certificate of difference of opinion 
between the consul and his assessors; and the commis¬ 
sioner decides upon the evidence “which comes up,” 
that is, from the consul, or upon further hearing of the 
parties, as he shall determine. All these are the inci¬ 
dents and the indicia of appellate, as distinguished 
from original, jurisdiction. 

Moreover, it seems fitting, and in the analogy of 
other judicial proceedings, that, in ordinary matters, 
an appellate authority should exist: which would not 


be the case here, if the commissioner had, in all things, 
original jurisdiction, concurrent with that of the con¬ 
suls ; and this anomaly would be the greater in the 
matter, in consideration that the statute gives no 
assessors to the commissioner. 

I think it is the theory of the statute, and a good 
one, to give to the commissioner, in ordinary judicial 
matters, at common law, only a regulative, appellate, 
and superintending authority, devolving the original 
jurisdiction in such cases upon the resident consuls; 
that condition of things being altogether in harmony 
with their diplomatic relation to one another and to 
the government. (Mr. Marshall to Mr. Marcy, Dec. 8, 
1853, Ex. Doc. 33d Cong., 1st ses., no. 123, p. 334.) 

No apparent inconvenience attaches to this conclu¬ 
sion, except in the contingency of the temporary 
vacancy of a consulate. I think in such case the 
commissioner ought to have, if he has not already, 
authority to appoint an acting consul. (Ibid, p., 372.) 

But the criminal and civil cases, which have thus far 
been the subject of consideration, do by no means cover 
the field of judicial authority at common law, still less 
that of such authority under the laws of the United States, 
still less of that which may be comprehended by regula¬ 
tions adopted by the commissioner, or by the commis¬ 
sioner and the consuls, and having u the force of law,” 
to supply any defects or deficiencies in the common law 
and the laws of the United States. It is manifest that 
the terms of description, contained in the statute, em¬ 
brace all possible jurisprudence, which does or may exist, 
compatibly with the organic principles of constitutional 
law, which govern, and at the same time guard the rights 
and the duties of citizens of the United States. 


220 


Leaving out of consideration all criminal matters, 
that is, treating them as fully disposed of, it becomes 
material to inquire how matters, not criminal, and not 
included in the appealable civil cases, are to be dealt 
with as between the commissioner and the consuls. 

The statute-provision as to the trial of civil “cases” 
is, that “the consuls aforesaid, and each of them, at the 
port for which he is appointed, shall have jurisdiction, 
as is herein provided, in all civil cases arising under 
said treaty, wherein the damage demanded does not 
exceed five hundred dollars,” in which cases the con¬ 
sular decision may be final; “but if in his judgment 
any case involves legal proplexities, and assistance will 
be useful, or if the damage demanded exceeds five hun¬ 
dred dollars,” then he must have assessors, and his 
decision is subject, in case of difference of opinion, to 
an appeal to the commissioner. (Sec. 11.) 

Now, there are processes which do not involve any 
question of “damages” whatever, but which are never¬ 
theless of primary importance and utility; such as the 
writ of habeas corpus. 

Other cases of controversy at law exist, which con¬ 
cern property, but in which no question of mere damage 
is involved, unless incidentally, such as many suits in 
rem , and many others de re. 

There is another class of cases of property, in 
which no damages are demanded, but equitable relief 
only, such as most matters in chancery. 

There is another class of processes, which have for 
their object to enforce or to protect rights in cases 
already sub judice otherwise; such as writs of mandamus 
supersedeas, and prohibition. 

Finally, there is a vast body of justiciable rights, to 


221 


which the phrase of “damages demanded 1 ’ can by no 
possibility apply, being questions of personal right, of 
the domestic relations, of inheritance, or of testamen¬ 
tary disposition. This includes cases of copartnership, 
or other joint interest, in real or personal estate, of 
insolvency, of divorce, of alimony, of wills, and of 
intestate successions. 

As to the distribution of all these matters between 
the commissioner and the consuls, the statute is abso¬ 
lutely silent; and that distribution is to be made by 
regulation, in subordination always to other specific 
rules of law. 

Therefore it is, that, in several provisions of the 
statute, jurisdiction is conferred in general terms on 
both the commissioner and the consuls, (sec. 1, 2, 3); 
and that a general power to issue all needful processes, 
as well as to make regulation of all processes, is con¬ 
ferred on the commissioner. (Sec. 5 and 13.) These 
general powers, we have seen, are defined and limited 
as to certain “civil cases” in other parts of the statute, 
which limitation depends on the nature of the case, as 
indicated by the question of “damages.” 

The same general powers are also limited more or 
less in the sense of locality; for it is enacted that “ the 
said functionaries,” that is, the commissioner and the 
consuls, being “(in)vested with all the judicial au¬ 
thority necessary to execute the provisions” of the 
treaty “shall entertain jurisdiction in matters of contract 
at the port where, or nearest to which, the contract was 
made, or at which, or nearest to which, it was to be 
executed; and in all other matters, at the port where, 
or nearest to which, the cause of controversy arose, or 
at the port where, or nearest to which, the damage 
29* 


222 


complained of was sustained,—any such port above 
named being always one of the five mentioned in the 
treaty.” (Sec. 3.) 

These conditions of locality are to be applied, so 
far as they may be in their nature applicable, to all 
cases. To many cases of contract and of damage sus¬ 
tained, the condition of one of the five ports is inap¬ 
plicable by its very nature. Thus, it may be the case 
of a contract made and to be executed, or of damage 
sustained, in Europe or in America, the parties being 
now in China. 

And the condition does not apply in terms to any 
thing but matters of “contract” or “damage sustained.” 
What shall be said, if it be a question of probate of 
will, of intestacy, or of divorce? 

Nor does the other form of the condition,—“the 
port where, or nearest to which, the cause of contro¬ 
versy arose,”—satisfy all the desiderata of the subject. 
There may be no “controversy” or “cause of contro¬ 
versy” in the matter, though it requires judicial deter¬ 
mination, as the probate of a will, which is at once the 
source and the authentication of title. And in many 
matters of “controversy,” it may be difficult, if not 
impossible, to show where the “cause of controversy” 
arose. 

But the statute does not undertake or profess to pro¬ 
vide specially for all questions, leaving many to the 
regulations of the commissioner. 

Where the question of place of judgment is deter¬ 
mined by the statute, of course that controls the com¬ 
missioner as well as the consuls. In all other cases, 
the rules and analogies of law on the subject of juris¬ 
diction, having reference to the situs of the thing, or 


223 


the residence or commorancy of parties, afford a suffi¬ 
cient guide to the regulative discretion of the com. 
missioner. 

Whatever is determined as to the person who shall 
exercise jurisdiction, must of course be conciliated with 
what shall be determined as to th q place of jurisdiction. 

Independently of this, it seems to me that the com¬ 
missioner and the consuls should make provision, in 
the manner indicated by the statute, that is, by sepa¬ 
rate or by joint regulations, (sec. 4 and 5), concerning 
all those things, the jurisdiction of which it leaves 
indeterminate, and, therefore, subject to regulation. 

Matters of insolvency, intestacy, probate of will, 
divorce, division, or regulation of copartnership or other 
common interests, habeas corpus, specific performance^ 
trust, discovery, seamen’s wages, charter-party, bottom¬ 
ry, and other matters of equity, admiralty, or ecclesias¬ 
tical law, are, for the most part, of local nature, and 
requiring prompt interlocutory action of judicial au¬ 
thority; and, therefore, seem to be fit subjects for the 
original jurisdiction of the consuls, with proper regula* 
tions for appeal to the commissioner. 

On the other hand, some processes, like mandamus, 
prohibition, supersedeas, are of so high a nature, that, 
like review, they seem appropriate to the jurisdiction 
of the commissioner. The same observation may, per¬ 
haps, apply to some processes in equity. 

Even as to all these matters, which the statute leaves 
undetermined, the safer course appears to me to be to 
adhere, so far as may be, to the spirit of the law, which 
makes the commissioner the appellate supervisor of 
the judicial acts of the consuls. * 

Inquiry has arisen as to whether a vice consul has 
power to act judicially in China. 


224 


It has been supposed that this is a question of the 
delegation of judicial power by a consular judge. It 
rather seems to be the question of how a vice consul 
may be lawfully appointed. 

The statute expressly says that “the word commis¬ 
sioner, when used in this act, shall be understood to 
mean the person (in)vested with, and exercising, the 
principal diplomatic functions in China; and the word 
minister as meaning the person (in)vested with the 
powers of chief diplomatic functionary of the United 
States in Turkey. The word consul shall be understood 
to mean any person (in)vested by the United States 
with, and exercising, the consular authority in any of 
the five ports of China named in the treaty, or any port 
in Turkey.” (Sec. 23.) 

The act then proceeds to say that “all such officers 
shall be responsible to the United States and to the 
laws thereof, not as diplomatic functionaries and com¬ 
mercial functionaries, but as judicial officers, when they 
perform judicial duties .” (Sec. 24.) 

Now, it has never been doubted that the secretary of 
legation in China, or any other acting charge d’affaires, 
could officiate as judge in virtue of treaty and statute. 

And as to consuls, what possible significancy has the 
statute, unless it be that vice consuls may so act, when 
duly appointed by the United States? 

In truth, the statute, with great propriety, employs 
the word consul as the nomen generalissimum for any 
person lawfully invested with consular authority. 

If, therefore, the vice consul have this power, it will 
not be authority delegated in the sense of the objection, 
that is, the case of a judicial consul delegating his 
judicial authority; but, on the contrary, it is the case 
of power conferred by the statute. 


225 


Moreover, the objection assumes that the vice consul 
is appointed by the consul. That is an error. The 
vice consul is in law appointed by the Secretary of the 
State or the President, just as inspectors of customs are 
in laiv appointed by the Secretary of the Treasury 
(or the President). To be sure, the consul in practice 
frequently nominates a vice consul to the Secretary of 
State, as the collector of customs nominates an inspec¬ 
tor to the Secretary of Treasury. (Mr. Legare’s Opin¬ 
ions, March 24, 1843, pp. 1577, 1579; United States vs. 
Bachelder, ii Gallison, p. 15; United States vs. Wood, 
ibid, p. 361.) Whether nominated in the first instance 
by the commissioner or by the consul, the vice consul, 
when approved by the Secretary of State, is to be 
deemed a “person (in)vested by the United States with, 
and exercising, the cousular authority.” And the ap¬ 
proval may, perhaps, be considered as covering the 
action of the vice consul under his existing appoint¬ 
ment by the commissioner. 

Suggestion is made of some other matters of doubt 
in the judicial power of the commissioner and the 
consuls, which requires us to go back to the treaty, 
and compare certain of its provisions with those of the 
statute. These doubtful matters are the three cases 
specified on a pevious page, in which question might 
arise whether the exterritoriality of Americans in China 
is perfect. It is, in truth, however, in each of those 
cases, a question, not whether they enjoy exterritoriality 
there so far as that is a privilege or a right, but whether 
it also attaches to them as an obligation. The laws of 
their own country accompany them to China, in so far 
as regards any criminal act whatsoever which they may 
commit, or be charged with committing, there. The 


226 


same laws accompany them, in so far as regards any 
rights they may possess relatively to any other Ameri¬ 
cans ; and so also in regard to any obligations to which 
they may be subject, relatively to any other Americans. 
But, how is it, in China, with regard to the civil rights 
and duties of Americans there, relatively to persons 
there not Americans ? 

As among the nations of Christendom, on their own 
soil, we know that alien friends may sue and be sued 
in the courts of any country. An American in France 
may recover his debt of a Frenchman; a Spaniard in 
the United States may recover his debt of an Ameri¬ 
can. Is the same thing true, as between persons of 
either of those nations in China? Is it true there, as 
between a Chinese and an American ? 

To begin with the latter case: The treaty stipulates 
that “if controversies arise (in China) between citizens 
of the United States and subjects of China, which can¬ 
not be amicably settled otherwise, the same shall be 
examined and decided, conformably to justice and 
equity, by the public officers of the two nations acting 
in conjunction.” (Art. 24.) The controversy shall be 
settled, that the treaty engages: it shall be settled 
conformably to justice and equity, and it shall be settled 
by some conjoint action of the proper officers of the 
respective nations. But how ? 

I think the answer is obvious. Before proceeding 
to give it, however, it may be well to anticipate objec¬ 
tion to what might, at first blush, appear to be an 
anomaly in jurisprudence. I mean the administration 
of law among distinct nationalities in the same place 
or territory, as applied to the state of things in China. 

In the middle age, the fact was common, as between 


997 


the coexisting nationalities, to give to distinct codes of 
law a personal application, according to nations, instead 
of a merely territorial force. (Cathcart’s Savigny, vol. 
i, ch. 3.) 

At the present time, we have precisely the same fact 
before us in British India. Europeans, when they first 
visited India, found a conqueror and a conquered race 
living together, with the law of each administered by 
nationalities. (Jones’s Ins. Hind. Law, art. 203.) Each 
successive European conqueror followed more or less 
the same rule. (Bowyer’s Pub. Law, p. 168.) The 
doctrine applies not only to civil rights and remedies, 
but also, in many respects, to crimes. (Morley, Ind. 
Cases, int. p. 169.) And the system is now sanctioned 
by the statutes of the imperial government, which 
enact that a case of controversy between Mohammedans 
is to be governed by their laws and usages, and a case 
of controversy between Gentoos by theirs, and where 
it is controversy between a Mohammedan and a Gentoo, 
the law of the defendant’s nation is to be applied to 
the case. (Act of Parliament of 21 George iii, c. 70; 
and of 37 George iii, c. 142. The acts of Parliament 
speak of Gentoos ooly in addition to Mohammedans. 
This word is not a name of nationality, but is English 
corruption of the Portuguese gentio (gentile.) Hence, 
the practical construction of the expression, in the 
Anglo-Indian courts, is to consider u Gentoo” as com¬ 
prehending all nationalities in Ilindostan except Chris¬ 
tians and Moors; and the national law of each is applied 
with impartiality alike to Hindus, Sikhs, Parsis, and 
Jews. (The Kojahs’ and Memons’ case, Perry’s Ori¬ 
ental Cases, p. 110, 124.) 

In the British colonies proper, as distinguished from 


228 


the delusively-called possessions of the East India Com¬ 
pany, the rule of public law is, to maintain the municipal 
institutions of the conquered until they be changed 
by the conqueror. (Burge’s Com., vol. i, p. 31; Clark, 
Colonial Law, p. 4. See Yattel, Droit des Gens., 1. iii, 
ch. 12, s. 201; Calvin’s case, vii Co. R., p. 176; Rex 
vs. Yaughan, vii Bur., p. 2600; Blanchard vs. Galdy, 
ii Salk, p. 411; Brief in L T . S. vs Ritchie, p. 5.) 

In the United States the doctrine is the same. 
(Strother vs. Lucas, xii Peters, p. 436; Mitchell vs. The 
United States, ix Peters, p. 794.) 

But, in the British colonies proper, as well as in the 
States and organized Territories of the United States, 
the law is territorial in its application and force, not 
personal,—that is, it applies to all persons, of whatever 
nation, within the ceded or conquered territory. 

It will suffice to elucidate this by examples drawn 
from our own public law. 

The several treaties of cession, by which foreign 
territory, with its inhabitants, has been transferred to 
the United States, are those of Louisiana, of the two 
Floridas, and of New Mexico and California. 

Our treaty with France, for the acquisition of Louisi¬ 
ana, stipulates that: 

“ Art. III. The inhabitants of the ceded territory shall 
be incorporated in the Union of the United States, and 
admitted as soon as possible, according to the principles of 
the federal constitution, to the enjoyment of all the rights, 
advantages, and immunities of citizens of the United States; 
and, in the meantime, they shall be maintained and pro¬ 
tected in the free enjoyment of their liberty, property, and 
the religion which they profess.’’ (viii Stat. at Large, 

p. 202.) 

Stipulations to the same effect appear in the treaty 


229 


with Spain, which transferred to us the Floridas, (Art. 
v and vi, viii Stat. at Large, p. 356); and that with 
the Mexican republic, which recognised our conquest 
of New Mexico and California. (Art. viii, ix Stat. at 
Large, p. 929. 

In each of these instances, it has been adjudged, as 
the rule of our public law, and provided by statute, 
that the laws and usages of the ceded country , as they 
existed at the time of cession, continued to be the law, 
not only of the previous inhabitants, but of all others 
who should come to reside in it. No distinction of 
law was maintained in Louisiana, Florida, or California, 
between the original French or Spanish inhabitants 
and the immigrant Anglo-Americans. The civil law 
continued to be the law of the country, until it was 
modified by the legislative act of the people of the Ter¬ 
ritory ,—that is, the new inchoate state of the American 
confederation,—that is, its free inhabitants, of which¬ 
ever nation, acting as a political society. In what is 
now the State of Louisiana, for instance, the Roman, 
Spanish, and French laws, modified by statutes, con¬ 
tinued to be the system of the State. (Louis. Code, 
art. 36, 21.) In the Territory, now State, of Missouri, 
when the Anglo-Americans had come to predominate 
in numbers, the common law was substituted for the 
civil, as the fundamental body of jurisprudence. (Acts 
of 1816 and 1825. See Brief, Ruggles vs. Comtesse 
de Tournon, p. 38.) The same thing was done by the 
State of California. (Act. of 1850.) Thus, in each 
organized Territory or State of the Union, there is but 
one municipal code , so far as regards all the inhabitants 
of the Territory or State. 

Nevertheless, we have, in territory of the United 
30* 


230 


States unorganized, the example of law administered 
by nationalities in the case of the subject Indians, more 
especially the Choctaws, Chickasaws, and Cherokees. 
(Opinion, May 23, 1855. MS.) 

Nay, we have a striking example of the same thing, 
in substantial effect, in the administration of law as 
applied to the citizens of the United States. 

Every such citizen, save in the District of Columbia, 
is a citizen of some State, or of a Territory, hereafter to 
become a State. But, in respect of all matters of muni¬ 
cipal resort, the several States are in the relation to one 
another of foreign governments. That is to say, their 
citizens constitute in many respects distinct and inde¬ 
pendent nationalities. 

In Pennsylvania, for instance, a citizen of Virginia 
sues, or, if there, may be sued, either in relation to a 
citizen of Pennsylvania, or even to another quasi¬ 
foreigner, such as a citizen of Massachusetts: all, in 
Pennsylvania, being thus subject to the laws and the 
tribunals of Pennsylvania. But, if the subject-matter 
be one of federal law, that, and not the law of the 
State, is to be applied to the case. 

Moreover, each citizen of a State has open to him 
the federal courts in a controversy between himsel 
and a citizen of another State, either by the transfer 
of his case, or by original suit in the courts of the 
United States. But, in that event, he must go into the 
federal courts for the State of the defendant , and, unless 
it be a question of federal rights, he must accept as the 
rule of decision the municipal law of that State. 

I apply these doctrines of public law to citizens of 
the United States in their relations to persons of other 
nations in China, 


231 


First, as to a demand brought by a Chinese against 
an American : The statute provides that the consular 
court shall have jurisdiction of u all civil cases arising 
under said treaty.” (Sec. 3 and 11.) The contro¬ 
versy supposed is a civil case arising under the treaty. 
When it arises, “the proper officers of the two nations” 
will agree that the Chinese shall go into the consular 
court as plaintiff, and that court will take jurisdiction 
of the defendant as an American. Or they may enter 
into a general agreement, and the commissioner may 
provide, by a standing regulation under the statute, 
that the consular court shall hear and determine all 
private claims which Chinese may prefer against Ameri¬ 
cans. 

Confirmatory of this conclusion, as also of what 
is hereafter to be said of the case of controversy be¬ 
tween Americans and foreigners in China, there is in 
the statute a very significant expression, which assumes 
that the consular courts are to administer justice in 
some cases not confined to citizens of the United States. 
It extends the law, which it prescribes, to citizens of 
the United States, and to u all others , to the extent that 
the terms of the treaty justify or require.” (Sec. 34.) 
Among those “others” are subjects of China and of 
any government, who, by voluntarily making them¬ 
selves parties complainant or demandant before the 
consular court, appeal, pro tanto , to the laws of the 
United States. 

Secondly, as to a demand by an American against a 
Chinese: The former must, of necessity, be content 
with such judicial or executive action of the Chinese 
government in the premises, as appertains to their 
institutions, and as, by special application in each case, 


232 


or by general application, may be required on the part 
of the public officers of the United States. 

As to the other case, that of controversies occurring 
in China between citizens of the United States and 
subjects of any other (Christian) government, the treaty 
provides that the same “shall be regulated by the 
treaties existing between the United States and such 
governments, respectively, without interference on the 
part of China.” (Art. xxv. 

Now, we have no special treaty with any of those 
governments on this point; nor is any needed, or 
necessarily required or intended by the stipulation 
under consideration. With all, we have treaties of 
amity, or of ordinary commercial and social intercourse; 
and that suffices to meet the exigency. 

By the tenor of those treaties, as they are construed 
by the law and usage of nations, an Englishman has 
the right to sue a resident American, or an American 
a resident Englishman, as alien friend, in all places 
wherever, respectively, the jurisdiction of the other 
country exists locally, and is complete as to subject- 
matter, persons, and remedial forms. (Foelix, Dr. Intern, 
prive, tit. xi, ch. 2.) 

The jurisdiction of the United States is complete as 
to their citizens in China; and the jurisdiction of Great 
Britain is complete as to her subjects in China. That 
the jurisdiction, in each case, is exterritorial, that in 
China it is excepted from the local territoriality, and 
that it is outside of the territoriality of either Great 
Britain or the United States, is a fact wholly immaterial 
to the question. It is a question free of all doubt on 
principles of international right, and subject only to 
the single inquiry, whether the given #*mntry, each 


233 


proceeding in established legal forms, by whatsoever 
authority such forms be established, has conferred on 
its courts of justice in China jurisdiction ad hoc, or 
whether that remains to be done. 

Here, again, the statute is explicit and ample. It 
confers on the consular courts jurisdiction of “all civil 
cases arising under said treaty.” . A demand of an 
Englishman against on American is a civil case arising 
under the treaty, as we see. 

Therefore, a suit may be brought by the Englishman 
against the American in the consular court of the 
United States; as, undoubtedly, in the consular court 
of Great Britain, it may, consistently with public law, 
be brought by an American against an Englishman. 

If the Englishman were within the territorial juris¬ 
diction of the United States, he might sue, but would 
also be subject to suit, in the local courts, as the 
American might and would be in England. (Foelix, 
ubi supra.) Nay, a suit would lie in the courts of 
Great Britain or the United States, between residents, 
both being aliens in the country. (Foelix, ubi supra.) 

In China, the relative condition of all these persons 
differs in this, that the local courts of each government, 
being exterritorial ones, have no territorial jurisdiction, 
but only a j urisdiction as respects persons, namely, its 
own citizens or subjects. Of course, neither govern¬ 
ment can take compulsory jurisdiction there of a sub¬ 
ject or citizen of any other; but each may act compul¬ 
sorily upon its own, at the suit of that of another. 

Perhaps neither government is under perfect obliga¬ 
tion to do this; but it may do so in obedience to 
national comity; it can rightfully do so if it will; and 
its obligation to do so will be perfect, provided th 


234 


exercise of the right be reciprocated by the other 
government. 

One other, and a more difficult, question remains to 
be explored, namely, whether a foreign government 
can pursue a citizen of the United States for debt or 
damage before the consuls’ court in China. I put the 
question in the most general form, for so, in truth, it 
needs to be considered, although it presents itself, in 
your communication, as a special question of an assumed 
or suggested right of the government of China to sue 
for duties on imports or exports due, or claimed to be 
due, from citizens of the United States. 

Here, within the territorial limits of the United 
States, beyond all peradventure, the Great Khan may, 
for good and lawful cause, bring suit in some proper 
court against a citizen of the United States. 

In England, it has been held from the earliest times 
that a foreign prince or government may appear and 
prosecute suit before the courts of the realm, either at 
law or in equity (Calvin’s case, vii Co. R., p. 30, citing 
xi Edw. iii.) 

The King of Spain has been several times a suitor 
in the courts of England. (Roi d’Espaigne vs. Pountes, 
Rolle’s Abr. tit. Court d’Adm., E. 5; Spanish Ambassa¬ 
dor vs. Pountes, i Rolle’s R., p. 133; King of Spain vs. 
Hallett, i Clk. and F., p. 333, and vii Bligh, 559; King of 
Spain vs. Tacon, iv Russ., 225; King of Spain vs. 
Machado, ibid., p. 560; King of Spain vs. Mendizabel, 
cited in Col. Gov. vs. Rothschild, i Sim., p. 101. See 
also Hallet and King of Spain, ii Bligh, N. S. p. 31.) 

The Queen of Portugal has appeared occasionally. 
(Queen of Portugal vs. Glyn, vii Clk. and F , p. 466. 
See also Glyn vs. Queen of Portugal, i Younge & C., p. 
644.) 


The King of Hanover has also been a party both 
plaintiff and defendant. (King of Hanover vs. Wheatly, 
iv Bev., p. 78; Duke of Brunswick vs. King of Hano¬ 
ver, vi Bev., p. 1.) The Republic of Columbia has been 
a complainant before the Vice Chancellor. (iSim., p. 94.) 

To the same effect is the doctrine of the United States. 
In Pennsylvania we have had the case of the King of 
France vs. Morris. ^Referred to in Peter vs. Steel, 
iii Yeates, 250, 251.) In New York we have the 
recent case of the Republic of Mexico vs. Arrangoiz. 
(MS.) The King of Spain has appeared in the cir¬ 
cuit court of the United States. (King of Spain vs. 
Oliver, ii Wash. C. C. R., 429.) The King of Prussia has 
been plaintiff in the State of Missouri. (MS.) One 
of the cases above cited is particularly interesting, 
because it is a suit by the King of Spain against a citizen 
of the United States for duties on imports into the port 
of Vera Cruz. This appears by the charge of the court 
on the trial of the case. In that charge, it is not inti¬ 
mated that the King of Spain might not well sue in our 
courts for duties: and the answer of the defendant 
consisted of other matters; such as, that the duties were 
not due from this defendant, but from another party; 
and that they had in fact been paid or adjusted in account 
by that other party. (King of Spain vs. Oliver, i Pe¬ 
ters’ C. C. R., p. 276. See also ibid., p. 217.) 

W^hile, on its face, this case goes to show that a 
foreign government may sue in the United States tor 
duties, yet such conclusion must be taken with the 
reservation that it was a case at nisiprius. It is open 
to very serious objections, as applied to the case of a 
suit by the Chinese government for duties. That is to 
say, our courts are free to foreign sovereigns for many 


236 

purposes; but non constat that they are in all cases. 
And, among the questionable matters, are things of 
political obligation, as distinguished from municipal 
engagement. (Nabob of Carnatic vs. East India Com¬ 
pany, i Yes., pp. 371, 388; ii Yes., p. 56.) This con¬ 
sideration may or may not be material to the present 
inquiry. At any rate, it suggests reflection as to the 
bearing of the treaty upon the question. 

I perceive, on referring to the treaty with China, not a 
single word, which implies that the judicial authorities of 
the United States there may entertain the suit of a gov¬ 
ernment or sovereign The treaty mentions explicitly 
u the subjects of China” and u the subjects of other gov¬ 
ernments,” and “subjects” alone, as the parties to legal 
controversy, in which the public officers of the United 
States are to intervene. But the statute, as we have 
already seen, is but co-extensive with the treaty, and 
confers jurisdiction of those controversies, whatever 
they may be, which the treaty contemplates as the 
object of legal adjudication, and no others. Of course, 
as it would seem, the consular courts cannot entertain 
a suit by the government of China. 

There is another class of considerations, which is 
conclusive. It is, that the treaty makes full provision 
as to the mode of assessing duties, and the means of 
securing their payment; and the provision on these 
points consists of political engagement. The consul of 
the United States is to adjust all disputes of appraise¬ 
ment with the Chinese superintendent of customs. 
(Art. xi.) That is political, not judicial, action. So, 
without payment of duties, the superintendent refuses 
to deliver a clearance, and the consul withholds the 
ship’s papers. (Art. xxiii) That is political action on 


237 


both sides. And it is preventive action, and, there¬ 
fore, better than remedial. The government of the 
United States engages to the government of China, 
that, until the duties be adjusted, no ship shall receive 
her papers; and the consul sees to this on the part, 
and as the officer, of the United States. 

I do not mean to say that the treaty might not have 
stipulated a purely judicial remedy in these cases. I 
merely say that, in my opinion, it has not done this. 
It has provided other remedies, such as the high con¬ 
tracting parties at the time saw fit to agree to by 
sovereign convention. If it be desirable on either side 
to change the provision of the treaty in that respect, 
and to open the consular courts to the Chinese govern¬ 
ment for the collection of duties, and to that and all 
other governments, as courts within the United States 
are, an opportunity will be afforded during the next 
year, when, by the terms of the treaty, it becomes 
subject to revision and amendment. (Art. xxxiv.) 
But whether any such change be expedient or not, is 
a diplomatic question, for the determination of the 
President. 

The act of Congress, herein commented on, is a most 
important and valuable one. It made provision, how¬ 
ever, for a discription of cases, new, in form at least, 
to the legislation of the United States, and subject, of 
course, to such amendment as time and experience 
might show to be desirable. I beg leave to call your 
attention to the instructive suggestions on this point, 
which occur in one of Mr. Marshall’s despatches. (Mr. 
Marshall to Mr. Marcy, December 8, 1853, (B), Ex. 
Docs, ubi supra, p. 331.) 

Permit me to observe, in conclusion, that the trans- 
31 * 


238 


action, referred to in your note, in respect to duties 
claimed of citizens at Shanghai, was not judicial in 
their nature, either in form or in substance. It was a 
decision by the commissioner. There could be no 
J udicial decision by the commissioner, except on appeal 
from the consular court at Shanghai. In that court, to 
constitute the ground-work of action by the commis¬ 
sioner, there must have been a trial and decision by 
the consul, with dissenting opinions of his assesors, 
certified in due course to the commissioner. None of 
these things appear. On the contrary, it is clear that 
the commissioner decided the question in his political 
or individual character as arbitrator between the 
Chinese government and the particular citizens of the 
United States, and the decision has validity as an arbi¬ 
tral award of his, not as a judicial decision of the con¬ 
sular court of Shanghai. (Mr. McLane to Mr. Marcy, 
Nov. 25th, 1854, and exhibits, especially, Exh. F., MS. 
State Dept. 

I have the honor to be, very respectfully, 

C. CUSHING. 

lion. W. L. Marcy, 

Secretary of State. 



































































